It's become fairly common to see opinions in Delaware noting that an argument has been waived when presented only in passing. The classic example is something discussed only in a footnote.
This of course leads to the question of which other bits of a brief are too scanty to hide an argument. Might there be other spots we should know to avoid?
Judge Williams' opinion last week in Game Play Network, Inc. v. Lien Games Racing LLC, C.A. No. 23-323-GBW-CJB, D.I. 34 (D. Del. Jan 3, 2025) gave us just such an example of a place an argument can not be placed.
As a bit of background, local rule 7.1.3 lists a series of sections required for briefs including "nature and stage of the proceedings," "conclusion," and—important here—"argument." The plaintiff there had lost a 101 motion and moved for reconsideration, alleging among other things, that the Court had neglected to address several claim construction issues. In particular, the motion for reconsideration argued that the "statement of facts" portion of their original opposition brief had discussed several relevant terms and the need for construction.
Judge Williams found that the passing reference to claim construction in the argument section was ...
