The laches defense remains available in patent cases. In an en banc decision,SCA Hygiene Products v. First Quality Baby Products, LLC 2015 U.S. App. LEXIS 16621 (Fed. Cir., September 18, 2015), the Federal Circuit distinguished the Supreme Court's decision last year in the "Raging Bull" case (Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962 (2014)) in which the High Court significantly limited the laches defense in copyright cases.
Relying on Congress' codification of the laches defense in 35 U.S.C. § 282(b)(1) and the fact that such a defense may coexist with the statutory six-year limitation on past damages (35 U.S.C. 286), the court held that laches still applies in patent cases. The decision also held that laches can "only foreclose an ongoing royalty in extraordinary circumstances" but that delay can be raised as a defense to an injunction inasmuch as "considerations of laches fit naturally within the eBay framework." Thus, laches remains a viable defense to patent infringement where a plaintiff may have delayed in bringing suit.
The Court's decision highlights the need to work with counsel to fully evaluate not only potential liability defenses, but also defenses to the imposition of damages, such as laches and marking.