A Blog About Intellectual Property Litigation and the District of Delaware

Entries for tag: Briefing

Slowly .... slowly .... no sudden moves
Slowly .... slowly .... no sudden moves AI Generated, displayed with permission

We've all said things we'd like to take back. Maybe it was something hurtful, said in a moment of anger to a loved one. Maybe it was a joke that landed like a brick in a toilet. Maybe it was "no band will ever reach the artistic heights of Green Day in their prime."

Maybe it was just a moderately incorrect pleading.

Last week Judge Andrews reminded us all that, at least in the latter case, you can't just ask to take it back. Surprisingly, it also teaches us that this can be a good thing.

The plaintiff in Allergan USA, Inc. et al v. Aurobindo Pharma Ltd …

Dave Adamson, Unsplash

It happens all of the time: You've got arguments A, B, and C that you want to fit in your brief, but you don't have the space to address them all.

What to do? Cut the weaker arguments?

For most attorneys, the answer is: of course not! They move the lesser argument to a footnote in a hail-mary attempt to win if the better arguments fail.

Does it work? Not usually. Here in D. Del., judges have suggested that parties waive arguments when they present them only in cursory footnotes, and Judge Noreika recently noted that "courts traditionally do not consider arguments presented entirely in footnotes." Nw. Univ. v. Universal Robots A/S, C.A. No. …