Arguments raised in passing (such as in a footnote), but that are not squarely argued, like this one, are considered waived. See Idenix Pharms. LLC v. Gilead Scis., Inc., 271 F.Supp.3d 694, 698 n.6 (D. Del. 2017); Robocast, Inc. v. Apple Inc., Civil Action No. 11-235-RGA, 2014 WL 2622233, at *1 (D. Del. June 11, 2014). Lastly, Defendants assert that Plaintiffs have failed to allege the essential elements of a conspiracy because “the information allegedly concealed or withheld from Plaintiffs was expressly disclosed in the SPA, and neither Defendant paid anything to Voss[.]” (D.I. 158 at 20)

As an initial matter, the Court does not believe this argument has been properly preserved as grounds for judgment as a matter of law. Cf. SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006) (issues only presented in footnotes are not preserved for appeal); UCB, Inc. v. Accord Healthcare, Inc., 201 F. Supp. 3d 491, 542 n.33 (D. Del. 2016) ("Arguments that are presented in limited form in footnotes are entitled to little weight."), aff'd, 890 F.3d 1313 (Fed. Cir. 2018); Robocast, Inc. v. Apple Inc., No. 11-235-RGA, 2014 WL 2622233, at *1 (D. Del. June 11, 2014) (arguments made in footnotes are disfavored). For the sake of completeness, however, the Court will also address - and reject - Defendants' argument on the merits.

Gilead challenged the sufficiency of Idenix's evidence of willfulness at the close of all evidence. (See Tr. at 2029; D.I. 509) But Gilead's post-trial argument on the sufficiency of the willfulness evidence was limited to a cursory reference in a footnote in its brief supporting its renewed motion for judgment as a matter of law (see D.I. 536 at 24–25 & n.14), which is inadequate to put the issue before the Court. SeeJohn Wyeth & Brother Ltd. v. CIGNA Int'l Corp. , 119 F.3d 1070, 1076 n.6 (3d Cir. 1997) (stating that "arguments raised in passing (such as, in a footnote), but not squarely argued, are considered waived"); Robocast, Inc. v. Apple Inc. , 2014 WL 2622233, at *1 (D. Del. June 11, 2014) (same).More particularly, the Court takes as true, among other things, that Pharmasset's founder, Dr. Raymond Schinazi, violated his confidentiality obligations to Idenix, and shared with Pharmasset scientists Idenix's proprietary discoveries relating to treatment of HCV. Specifically, Dr. Schinazi "took" from Idenix the use of "two-prime (2')–methyl up modified nucleosides" as being effective in the treatment of HCV. Whether directly or indirectly, Dr. Schinazi improperly shared this Idenix information with Pharmasset scientists, whose reactions included bemoaning that they now needed a "cold shower" as they feared their concurrent development efforts would be for naught, as there was nothing left for Pharmasset to patent.

I do not read Plaintiff's brief to argue that the collection of files that constitutes Windows in its post-installation form is a "file" because it only makes that argument in a footnote to its brief. Robocast, Inc. v. Apple Inc., 2014 WL 2622233, at *1 (D. Del. June 11, 2014); cf. SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006). At oral argument, however, Plaintiff asserted that its brief does raise that argument.

In addition to these defenses, Defendants reference two other invalidity positions, but only in conclusory fashion and only in footnotes. (See OB at 24 n.1 (arguing that '551 patent is invalid for lack of adequate written description and for lack of enablement)) Defendants do not explore these arguments in depth and do not reference them outside of the footnote in which they are introduced. Assuming, arguendo, that Defendants have adequately preserved these conclusory arguments, but see SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006) (stating that arguments raised only in footnotes are not preserved); Robocast, Inc. v. Apple Inc., 2014 WL 2622233, at *1 (D. Del. June 11, 2014) (explaining that arguments made in footnotes are disfavored), the Court has not been persuaded by either of them. The record does not reveal clear and convincing evidence that the asserted claims lack adequate written description or enablement. (See AB at 34) --------

In addition to these defenses, Defendants reference two other invalidity positions, but only in conclusory fashion and only in footnotes. (See OB at 24 n.1 (arguing that '551 patent is invalid for lack of adequate written description and for lack of enablement)) Defendants do not explore these arguments in depth and do not reference them outside of the footnote in which they are introduced. Assuming, arguendo, that Defendants have adequately preserved these conclusory arguments, but seeSmithKline Beecham Corp. v. Apotex Corp. , 439 F.3d 1312, 1320 (Fed.Cir.2006) (stating that arguments raised only in footnotes are not preserved); Robocast, Inc. v. Apple Inc. , 2014 WL 2622233, at *1 (D.Del. June 11, 2014) (explaining that arguments made in footnotes are disfavored), the Court has not been persuaded by either of them. The record does not reveal clear and convincing evidence that the asserted claims lack adequate written description or enablement. (See AB at 34)