The Supreme Court recently granted certiorari in SCA Hygiene Products Aktiebolag v First Quality Baby Products to consider whether the doctrine of laches can bar a claim for damages in patent infringement cases. The Federal Circuit Court of Appeals had held en banc that laches could be used to bar infringement claims even accruing within the six-year statutory limitations period. This raises the possibility of substantially increasing the ability for patent owners to obtain damages for patent infringement.

This case follows the Supreme Court's 2014 decision in Petrella v Metro-Goldwyn-Mayer, where the court held that laches could not be used to bar copyright infringement claims brought within the three-year limitation period established in Section 507(b) of the Copyright Act. The court in Petrella relied on the rule that laches is a defence to equitable relief, but not to recovery of legal damages where a statutory limitations period is established. When asked to apply the same legal reasoning to patents, where recovery of damages is limited to six years under Section 286 of the Patent Act, the Federal Circuit declined to do so.

Many in the patent community anticipate that the Supreme Court is likely to reverse the Federal Circuit in light of Petrella. If so, this will remove laches as a defence for damages claims for patent infringement and serve as a boost for patent owners. However, additional uncertainty may be added to the equation when the ninth spot on the court's bench is filled. A split four-four decision would leave the Federal Circuit's ruling in place.

W Edward Ramage

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