A Blog About Intellectual Property Litigation and the District of Delaware


Judge Andrews just issued some tough guidance for parties thinking about filing R&R objections in D. Del.

The entire order is worth a read, but the most interesting tidbit is in the first footnote. Magistrate Judge Burke issued an R&R on a motion to dismiss, where he recommended dismissing the plaintiff's indirect infringement claims (without prejudice) and denying the defendant's § 101 motion.

Judge Andrews wasted no time overruling the plaintiff's objection to the dismissal of its indirect infringement claims, noting that:

Plaintiff’s argument has no impact on this case; Defendant wisely did not waste paper filing a response.

Although Judge Andrews spent more time discussing the defendant's objections, he quickly dispatched several arguments that were raised only in footnotes:

Footnote 1 notes additional objections, and footnote 2 could be read to raise an additional objection too. . . . Objections raised in footnotes are waived.

We say it often, but it can't be repeated enough: If an argument is important enough to make it into your brief, don't put it in a footnote!

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