The U.S. Court of Appeals for the Federal Circuit has order for en banc review of the defense of laches in patent cases in order to evaluate the impact of the Supreme Court’s laches decision in the copyright case Petrella v. Metro-Goldwyn-Mayer on the same defense when raised in patent cases.  SCA Hygiene Products Aktiebolag, et al. v. First Quality Baby Products, LLC, et al., Case No. 13-1564 (Fed. Cir., Dec. 30, 2014).

In a copyright case, decided in April of 2014, the Supreme Court decided that the laches defense does not apply to copyright infringement that occurs within a statute of limitation period.  Petrella, IP Update, Vol. 17, No. 5.

Shortly thereafter, in a September 2014 panel decision, the Federal Circuit affirmed a district court’s dismissal of a patent case based on the defense of laches, IP Update, Vol. 17, No. 10.

The Federal Circuit has now granted en banc review of the panel decision to decide the following issues:

a) In light of the Supreme Court’s decision in Petrella v. Metro-Goldwyn-Mayer, and considering any relevant differences between copyright and patent law, should this court’s en banc decision in A.C. Aukerman Co. v. R.L. Chaides Constr. Co., be overruled so that the defense of laches is not applicable to bar a claim for damages based on patent infringement occurring within the six-year damages limitations period established by 35 U.S.C. § 286?

b) In light of the fact that there is no statute of limitations for claims of patent infringement and in view of Supreme Court precedent, should the defense of laches be available under some circumstances to bar an entire infringement suit for either damages or injunctive relief?  See, e.g., Lane & Bodley Co. v. Locke.