By Don Wang

On September 18, 2015, the Federal Circuit, sitting en banc, rendered another divisive decision, SCA Hygiene Products AB v. First Quality Baby Products. In the very first paragraph of the dissent opinion, Judge Hughes harshly states, “[p]atent law is governed by the same common-law principles, methods of statutory interpretation, and procedural rules as other areas of civil litigation. Today, the majority adopts a patent-specific approach to the equitable doctrine of laches. In doing so, the majority overlooks Congress’ intent and Supreme Court precedent . . .” Ouch!

The Supreme Court’s 2014 “Raging Bull” copyright decision, Petrella v. Metro-Goldwyn-Mayer, Inc, prompted the issue. In that case, the Supreme Court eliminated the “judicially-created laches defense [in copyright cases] because Congress, through a statute of limitations, ha[d] already spoken on the timeliness of copyright infringement claims.” The Patent Act similarly provides a six-year rolling limitation period, but Federal Circuit precedent held that the statute of limitations and laches defense can coexist in patent law. Interestingly, the Supreme Court specifically remarked in the Raging Bull case that it had “not had occasion to review the Federal Circuit’s position [that laches can bar past damages in patent law].” Taking the cue from the Supreme Court, SCA Hygiene appealed to the Federal Circuit en banc review and argued that there is no “principled distinction” between the statute of limitations in the Copyright Act and Patent Act. Continue reading →