A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Waiver

Freshly preserved arguments, ready to be set aside for the winter...
Freshly preserved arguments, ready to be set aside for the winter... Olia Gozha, Unsplash

Parties often try to expressly reserve, preserve, and/or avoid waiver of arguments or the right to seek relief, often in a paper filed or served on the deadline to make the argument or seek the relief. It may not always work—but it's not very costly to give it a shot, either.

Last week, in Aqua Connect, Inc. v. TeamViewer US, Inc., C.A. No. 18-01572-MN (D. Del.), Judge Noreika rejected an attempt by a plaintiff who prevailed at trial to avoid having to raise its arguments regarding post-trial interest during post trial briefing.

After plaintiff won a $5.7m verdict in a jury trial …

daniel-jensen-UDleHDOhBZ8-unsplash
Last summer, Daniel Jensen, Unsplash

We've all spotted a waiver in the other side's papers—some issue that would have been raised earlier or more clearly by a noble opponent in a just world. Normally the issue doesn't merit more than a finger-shaking footnote, but its galling nonetheless.

Forget it Jake, it's Delaware.

An Issue Ignored

This brings us to the convoluted saga of San Rocco Therapeutics, LLC v. Bluebird Bio, Inc. The plaintiff had a license to the patents-in-suit and the parties disputed whether it was sufficient to grant standing. Because that license had an arbitration provision, the defendant moved to stay the case and compel arbitration.

In their opening brief, however, Defendants did not address the threshold …

Sometimes Arguments Solve Nothing
Sometimes Arguments Solve Nothing Sarah Kilian, Unsplash

It's uncommon to see the Court dismiss an ANDA case before trial. The patents are usually grounded enough to avoid easy 101 issues, infringement is as likely to be conceded as disputed, and any other serious invalidity contentions are normally simply reserved for trial (none of our Delaware judges allow for SJ motions in ANDA cases without leave).

That being the case, Judge Stark's dismissal of the complaint in Almirall, LLC v. Torrent Pharmaceuticals Ltd., C.A No. 20-1373-LPS, D.I. 50 (D. Del. July 13, 2021) ("Almirall II"), via a 12(c) motion is worthy of comment merely because it dismissed an ANDA complaint on the pleadings before Markman. …