When we last discussed patent laches here, the Federal Circuit had voted to rehear, en banc, SCA Hygiene Products’ patent infringement claim, which invoked a laches defense. At that time, the Supreme Court had recently decided in Petrella v. Metro-Goldwyn-Mayer, Inc.[1] that laches was not a defense to a copyright infringement claim brought within the codified statute of limitations. The en banc Federal Circuit subsequently ruled in SCA Hygiene last September that, despite Petrella’s copyright holding, laches is still a viable bar to legal relief in patent cases.

Laches is an equitable defense to a claim that is available if an unreasonable delay in asserting the claim has unfairly prejudiced the party being sued. In the patent infringement context, this might include a patentee’s allowing damages to accrue before bringing a patent infringement suit against an infringer that might have otherwise stopped infringing had it been notified in a timely manner. Laches is a common-law defense that has long been available to alleged infringers, but the Supreme Court has decided to consider whether the Federal Circuit correctly ruled that it applies to bar legal damages in the patent context despite the Court’s holding in Petrella.

In Aukerman,[2] the en banc Federal Circuit had previously ruled that laches does apply as a defense to a claim for patent infringement damages. The question presented in the SCA Hygiene case is as follows: “Whether and to what extent the defense of laches may bar a claim for patent infringement brought within the Patent Act’s six-year statutory limitations period, 35 U.S.C. § 286.”