“Equity aids the vigilant, not the sleeping ones”

Latin Proverb

Laches is one of those words that law students pay a great deal of money to learn the meaning of in law school. Essentially, the doctrine of laches permits a defendant to raise as a defense to a claim the argument that the plaintiff unjustifiably delayed in bringing the claim. In the patent context, it tends to apply to instances in which a patent owner knows about the accused infringement, but waits many years before doing anything about it.

All well and good. However, the Supreme Court’s opinion this year in Petrella v. Metro–Goldwyn–Mayer, simplified the doctrine greatly in the context of copyright infringement—by essentially eliminating it. Rather, concluded the Supreme Court, the existence of a set statute of limitations to bring a claim of copyright infringement meant that laches should not apply. As long as the claim is timely under the statute of limitation; there has been no unjustifiable delay.

In patent law, there is a six–year damages limitation period established by Section 286 of the Patent Act. Why, therefore, shouldn’t a similar rule apply to patent infringement cases? The Federal Circuit is poised to consider this question, having just granted en banc review in SCA Hygeine Prods. Aktiebolag v. First Quality Baby Prods., LLC. Notwithstanding the parallels, if past is precedent, the Federal Circuit may well find that patent infringement cases should be treated differently—however, the Supreme Court has taken a dim view of the Federal Circuit’s “exceptional” position on patent law in the past.

Still, it would be a shame to eliminate the laches defense in this context. The statute of limitations has an across–the–board effect in eliminating stale claims after a certain set time period, which is useful, but laches provides a defense to those special circumstances when the claimant may have acted in a way that worsened the defendant’s position. In other words, laches looks at the reasonableness and circumstances of the delay, not simply the amount of delay.