Tuesday, March 28, 2017

Temporal Patent Hygiene

Section 286 of the United States ("U.S.") Patent Act defines a window of opportunity in which a patent owner may recover for an alleged infringement:
Except as otherwise provided by law, no recovery shall be had for any infringement committed more than six years prior to the filing of the complaint or counterclaim for infringement in the action. 
In the case of claims against the United States Government for use of a patented invention, the period before bringing suit, up to six years, between the date of receipt of a written claim for compensation by the department or agency of the Government having authority to settle such claim, and the date of mailing by the Government of a notice to the claimant that his claim has been denied shall not be counted as part of the period referred to in the preceding paragraph.
In its March 21, 2017, decision, SCA Hygiene Products Aktibolag et al. v. First Quality Baby Products, a patent infringement dispute focusing on U.S. Patent No. 6,375,646 ("Absorbent Pants-Type Diaper"), the U.S. Supreme Court considered whether the ancient common law defense of laches could prevent recovery within a period specifically defined by a Congressional statute of limitations.  Laches is
the legal doctrine that a legal right or claim will not be enforced or allowed if a long delay in asserting the right or claim has prejudiced the adverse party. [Definition from LAW.COM]
The alleged diaper infringer, First Quality Baby Products ("First Quality") argued that SCA Hygiene Products Aktibolag et al. ("SCA Hygiene") waited so long before suing for patent infringement that laches precluded recovery.

[l]aches cannot be interposed as a defense against damages where the infringement occurred within the [six-year] period prescribed by [the statute of limitations in] §286.
Whether or not this is the best rule, it at least provides clarity about when an alleged infringer may or or may not be sued, providing a modicum of temporal hygiene in the often messy corpus of patent law.

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