Do you have a tendency to rely on substantive footnotes in your briefs? If so, consider this a warning.
A Stern Warning from the Bench
It is generally advisable not to bury key points in footnotes or rely on references to other documents in briefs. But, when a tribunal says something like the following, it is definitely time to take notice:
“Incorporation by reference amounts to a self-help increase in the length of the brief and is a pointless imposition on the court’s time. A brief must make all arguments accessible to the judges, rather than ask them to play archeologist with the record.”
These are the words of the Patent Trial and Appeal Board (PTAB) in its recent influential decision, Cisco Sys., Inc. v. C-Cation Techs., LLC, Case IPR2014-00454 (PTAB, Aug. 29, 2014), quoting DeSilva v. DiLeonardi, 181 F.3d 865, 866-67 (7th Cir. 1999) (internal quotations omitted).