Contentions are often contentious. The parties argue about how much detail is included, they argue about how to count references and accused products, they argue about what's actually disclosed and what's implied. My conservative estimate is that there are over 10 trillion opinions on contention topics issued every week in the district of Delaware.
Given the fact-specific nature of all these decisions, its often hard to draw bright line rules. Instead, you must engage in the tedious business of explaining why your contentions are really more like the ones in this case, and not at all like the ones in that case, because yadda, yadda, yadda.
But we got a nice neat rule from Judge Burke last week in Traveler Innovations Ltd. v. Everflo Co., Inc., C.A. No. 24-1204, D.I. 70 (D. Del. Sept. 30, 2025). There, the plaintiff complained that the defendant's invalidity contentions didn't sufficiently disclose the relevant combinations because they used language like "for example" when discussing which pieces of prior art disclosed which elements. They thus moved for an order requiring a more specific disclosure the combinations being asserted.
Judge Burke denied the motion, but gave some helpful guidance on the use of such exemplary language:
Plaintiffs’ objection is premised on Defendant’s use in its current invalidity contentions of language like “for example” or “exemplary[.]” But Plaintiffs can just pretend that those words don’t exist in Defendant’s contentions, since those words don’t mean much to the Court. Defendant has only disclosed the prior art combinations that are specifically recited in its current contentions. Just as with Plaintiffs’ own contentions, if Defendant later seeks to supplement its current contentions, and if that supplementation (assuming it is challenged) is deemed timely by the Court, then it will be permitted. If a contested supplementation is found to be untimely, then it won’t be permitted. And one of the factors the Court will consider in assessing whether supplemental contentions are timely is whether Defendant knew that its prior response was incomplete, and yet thereafter failed to timely supplement it.
Id.
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