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In a short order, Judge Andrews recently laid out his reasoning for denying a motion for reconsideration of a prior summary judgment ruling, and in doing so provided helpful guidance for litigants briefing summary judgment and litigants considering filing a motion to reconsider.

In the December 10 ruling, defendant Adtran sought reconsideration of Judge Andrews' denial of Adtran's motion for summary judgment that two of the asserted patents were obvious in light of a prior art reference called "Jones." Judge Andrews found that Adtran had not made the argument it was advancing in its reconsideration motion in the SJ briefing, and therefore denied the reconsideration motion.

In a footnote, Judge Andrews expanded on his reasoning and his view of how litigants should prioritize key arguments in their summary judgment briefing:

The entire obviousness argument relating to the reference Jones is one page. . . . In a twenty-page brief, Defendant made an anticipation argument based on Stopler, an obviousness argument based on Hwang and Hayashino, an obviousness argument based on Shively and Hayashino, and a combined anticipation/obviousness argument based on Jones. If Jones is the winning argument that Defendant now says it is, Defendant might have considered spending the full brief (or at least more of the brief) on that argument and developing the argument so that I could see its purported merits. But as it was, Defendant made an anticipation argument based on Jones with an underdeveloped obviousness argument as an afterthought.

Paring back summary judgment briefs is no easy task, but as this ruling shows, Judges may use the number of pages dedicated to an argument as a proxy for the litigant's views about the merits of that argument (which it often is). That has implications both for the summary judgment ruling and for any later reconsideration or appellate activity.

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