Thursday, August 29, 2013 10:13:52 AM
In Vringo's case, the Lang-Kosak '420 Patent was issued ten years prior to the filing of the complaint and the Lang-Kosak '664 Patent was issued seven years prior to the complaint. The date of constructive notice for Google cited by Vringo was in 2004, still over six years from when the complaint was filed. While time is only one of the elements that factor into a judge's decision, it is considered something of a prerequisite for even attempting a laches defense. The earliest constructive notice cited by Worlds of the patents in suit is February 20, 2007, the day the '690 patent was granted. The original complaint against Activision was filed on March 30, 2012. The patent statute states "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" (35 USC section 286). A successful laches defense, by way of differentiation, means that no damages will be awarded prior to the date of complaint but that fire-breathing dragon may be checked off the "unwelcome surprise" list here.
So, perhaps, all is well in the land of laches.
Good day.
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