Kinney & Lange, P.A., Author at Kinney & Lange

Federal Circuit Reaffirms Patent Exhaustion Doctrine

Posted on June 2, 2016 by Kinney & Lange, P.A.

In Lexmark Int’l, Inc. v. Impression Prods., Inc., 16 F.3d 721 (Fed. Cir. 2016) (en banc), the Federal Circuit was asked to determine the applicability of the doctrine of patent exhaustion in two contexts. First, the court was asked to determine whether the sale of a patented article to end users under a restriction that is otherwise lawful and within the scope of a patent grant nonetheless gives rise to patent exhaustion. The court held that a patentee may reserve its patent rights by selling a patented article under otherwise-proper restrictions on resale and reuse that are properly communicated. Second, the court was asked to determine whether a sale of a patented item outside the United States gives rise to patent exhaustion for a U.S. patent. The court held that the doctrine of patent exhaustion is not triggered by a foreign sale of a U.S.-patented article.

A patent gives the patentee the right to exclude others from engaging in certain acts–whoever “without authority” “makes, uses, offers to sell, or sells any patented invention, within the United States, or imports into the United States any patented invention” infringes that patent. 35 U.S.C. § 271(a). The patentee may, however, grant authority to another to engage in one or more of the enumerated acts, such that an otherwise infringing action is non-infringing. The court notes that each of the enumerated acts is joined by the disjunctive “or,” such that the patentee may grant “authority” to engage in as few or as many of the enumerated acts as the patentee wishes.

Lexmark sued Impression for importing and selling printer cartridges covered by a number of Lexmark patents. Lexmark offers its buyers a choice when purchasing printer cartridges. A buyer may purchase a “Regular cartridge” at full price, or a buyer may purchase a “Return Program cartridge” at a discount. Sales of the Regular cartridges were subject to no restriction on reuse or resale of the printer cartridges. The Return Program cartridges were subject to a “single-use/no-resale restriction,” however. Under the single-use/no-resale restriction “the buyer may not reuse the Return Program cartridge after the toner runs out and may not transfer it to anyone but Lexmark once it is used.” Third parties gathered spent Return Program cartridges, replaced protective features that prevented the cartridges from being reused, refilled the cartridges, and sold the cartridges to resellers, such as Impression, for sale to consumers to use with Lexmark printers.

Lexmark alleged infringement for two groups of cartridges: (1) Return Program cartridges that Lexmark sold in the United States under the single-use/no-resale restriction; (2) all cartridges sold abroad by Lexmark, including both Regular and Return Program cartridges. It was undisputed that the patents covering the cartridges were valid and enforceable, that both the first purchaser and Impression had adequate notice of the single-use/no-resale restriction, and that the restriction did not violate antitrust law or exceed the scope of the exclusive rights granted by the Patent Act. Impression instead argued that Lexmark had exhausted its U.S. patent rights by its initial sale of the cartridges, regardless of the existence of any restriction and the location of the sale.

Impression filed a motion to dismiss Lexmark’s claims in the district court. First, the district court granted Impression’s motion to dismiss the claims involving the Return Program cartridges first sold in the United States. In finding for Impression on the issue of domestic sales, the district court distinguished articles manufactured and sold by a patentee from articles made and sold by a licensee. Second, the district court ruled against Impression regarding Impression’s argument that patent exhaustion applied to cartridges initially sold abroad. As such, an initial, authorized foreign sale does not exhaust the patentee’s United States patent rights. The Federal Circuit reversed the district court’s ruling regarding the domestically-sold Return Program cartridges. The Federal Circuit affirmed the district court’s ruling regarding foreign sales of both the Regular cartridges and Return Program cartridges.

Patent exhaustion is a doctrine whereby a patentee confers authority to a purchaser to take certain actions, such as selling or using the purchased product in the United States, which action would be infringing without the authority from the patentee. Under the doctrine of patent exhaustion, an unconditional sale “exhausts” the patentee’s right to control the purchaser’s use of the patented device. In such an instance, the patentee’s rights in the patent are “exhausted” by the sale such that the purchaser may use or sell the purchased device without infringing the patent. The patentee may preserve certain rights by communicating a lawful restriction as to post-sale use or resale, however, and such a communication does not confer “authority” to engage in the activity precluded by the communication. So long as the restriction does not violate some other law or policy, such as antitrust law or engaging in patent misuse, then restrictions on the use of patented goods are allowable.

The Federal Circuit was asked to address two questions related to the doctrine of patent exhaustion. First, does the doctrine of patent exhaustion apply to the domestic sale of a product by the patentee, even where an otherwise-lawful restriction has been clearly communicated? Second, does a foreign sale of a U.S.-patented article trigger the doctrine of patent exhaustion?

In addressing the first question, the court reaffirmed the principles of Mallinckrodt, Inc. v. Medipart, Inc., 976 F.2d 700 (Fed. Cir. 1992). The court noted that Supreme Court precedent clearly leads to the conclusion that a patentee does not exhaust its patent rights upon a first sale where a buyer with knowledge of the restrictions resells or reuses the product in violation of the restrictions. The court was urged to distinguish between patentee sales and licensee sales. The argument behind the distinction was that “any sale of a patented article by a patentee, even when the rights granted are expressly restricted, is automatically an ‘authorized sale,’ causing the patentee to lose all § 271 rights in the item sold.” As such, the argument goes that because Lexmark is both the patentee and the seller, Lexmark has necessarily authorized the sale, thereby exhausting its patent rights regardless of any express restrictions. The court rejected the invitation to draw a distinction between patentee sales and licensee sales, however.

The Federal Circuit reaffirmed the principles of Mallinckrodt and overturned the district court’s ruling as to Return Program cartridges first sold in the United States. In Mallinckrodt, a patentee sold a medical device subject to a single-use restriction. Some purchasers sent used devices to Medipart for refurbishing and Mallinckrodt sued Mediprt for infringement due to the reuse in violation of the single-use restriction. The Federal Circuit found that a sale subject to a lawful, clearly communicated single-use/no-resale restriction does not give rise to patent exhaustion such that buyers, or downstream buyers, have the reuse/resale authority that was expressly denied previously.

The district court had relied on Quanta Computer, Inc. v. LG Electronics, Inc., 552 U.S. 617 (2008), as implicitly overturning Mallinckrodt as to a patentee’s sale of a patented article subject to a lawful single-use/no-resale condition. Quanta involved sales made to a manufacturer by a manufacturing licensee, not a patentee. The patentee had authorized the manufacturing licensee to make and sell the articles at issue, and the authorization was not subject to any conditions. The Federal Circuit distinguished Quanta by noting that Quanta involved no patentee sales and there were no restrictions on the sales made by the licensee. The manufacturer in Quanta raised the argument that patentees may preserve patent rights through lawful restrictions. The Court in Quanta responded to the manufacturer’s argument by concluding that there were no restrictions placed on the first sale of the articles, not that there was any meaningful distinction between patentees and licensees for purposes of patent exhaustion. The Federal Circuit thus concluded that the principles of Mallinckrodt remain after Quanta, such that a patentee may place lawful restrictions on the sales of patented articles regardless of whether the articles are made or sold by the patentee or a licensee.

The Federal Circuit concluded that the principle of Mallinckrodt remains good law. As such, “a patentee may preserve its § 271 rights when itself selling a patented article, through clearly communicated, otherwise-lawful restrictions, as it may do when contracting out the manufacturing and sale.” No practical reason exists to distinguish between sales made by the patentee and sales made by a manufacturing licensee. In fact, the court found that a distinction between patentee sales and licensee sales was “unjustifiably formalistic, [and] not founded in relevant economic substance.” Therefore, a patentee may preserve its exclusionary rights detailed in § 271 of the Patent Act through the use of a clearly communicated, otherwise-lawful restriction. A use in violation of the restriction can thus constitute infringement of the patent.

In addressing the second question the court reaffirmed the principles of Jazz Photo Corp. v. Int’l Trade Comm’n, 264 F.3d 1094 (Fed Cir. 2001). In Jazz Photo, the Federal Circuit concluded that “there is no legal rule that U.S. rights are waived, either conclusively or presumptively, simply by virtue of a foreign sale, either made or authorized by the patentee.” In Jazz Photo, the defendant, Jazz Photo, was importing refurbished disposable cameras originally sold by or with the authority of Fuji Photo Film. The Federal Circuit found that the doctrine of patent exhaustion does not apply to products originally sold abroad, though the circumstances of the sale may confer an express or implied license. As such, a foreign sale alone is insufficient to trigger the doctrine of patent exhaustion. A foreign first sale thus fails to “confer on the buyer ‘authority’ to import the item into the United States or to sell and use it here,” in the absence of an express or implied license.

Impression argued that the Supreme Court decision in Kirtsaeng v. John Wiley & Sons, Inc., 133 S.Ct. 1351 (2013), undermines the no-exhaustion holding of Jazz Photo. In Kirtsaeng, the Court addressed the statutory copyright first sale doctrine, and determined that owners of copyrighted articles may take certain actions with the authority of the copyright holder. However, the Federal Circuit found Kirtsaeng inapplicable for several reasons, including that Kirtsaeng is a copyright case that did not address any patent law, and more specifically, Kirtsaeng failed to address the exhaustion issue at hang in Lexmark, even in the context of copyright law. The Federal Circuit concluded that Kirtsaeng was not controlling; instead, the question of patent exhaustion resulting from foreign sales “requires a separate analysis in its own legal setting” distinct from copyrights.

The Federal Circuit concluded that the principle of Jazz Photo remains good law. As such, “[a] U.S. patentee, simply by making or authorizing a foreign sale of an article, does not waive its U.S. rights to exclude regarding the article.” The Federal Circuit went on to explain that the patent grant is a “market reward,” and that the market within which the reward is realized is necessarily the U.S. market subject to U.S. laws. The territorial nature of patent systems provides a strong indication that the first sale doctrine should not apply to purely foreign sales, as the patentee will not have received the same market award through the foreign sale. The court went on to differentiate the standards required for obtaining a patent to those required for obtaining a copyright, and noted that copyrights are generally easy to acquire and that governmental standards vary considerably less for copyrights than for patents. Foreign sales in the context of copyrights are thus distinguishable from foreign sales in the context of patents. The court further discussed the differences between foreign markets and U.S. markets and the practical effects that would result from foreign sales triggering the doctrine of patent exhaustion. The court concluded that a foreign sale of a U.S. patented article does not exhaust the patentee’s U.S. patent rights in the article sold, even where there is no express reservation of U.S. patent rights. The Federal Circuit thus affirmed the district court’s judgment of infringement as to all cartridges initially sold abroad, even though there was no express reservation of U.S. patent rights by Lexmark for the foreign sales.

The doctrine of patent exhaustion extinguishes a patentee’s ability to exert further control over a patented article after an authorized sale of the article. The patentee may, however, reserve its patent rights by selling the patented article under otherwise-proper restrictions on resale and reuse communicated to the buyer at the time of sale. The sale of a patented article may be so restricted regardless of whether the seller and manufacturer are themselves a patentee or a licensee. In addition, where a foreign sale is made by or with the approval of the U.S. patentee, the foreign sale does not exhaust the patentee’s U.S. patent rights, even when no reservation of the rights accompanies the sale. A foreign sale may cause a loss of U.S. patent rights only through an express or implied license.

European Union Trademark Update

Posted on June 2, 2016 by Kinney & Lange, P.A.

By: Lea Westman

The EU has a regional trademark system which has been continually updated and amended. The most recent changes to the EU trademark include changes in names of the organization, a change in the classification of trademarks, and a change to the rules surrounding transit of goods and trademark law. Under these new rules, current trademark owners have until September 2016 to change declared goods and services on old trademark applications.

The Old Community Trade Mark

The Community Trade Mark (CTM) has long been used in the EU in an effort to create uniformity of trademark law. A CTM registration grants uniform protection and effect across all of the EU, as set forth in Article 1(2) of the CTM Regulation, European Council Regulation No. 40/94. This system was introduced in 1996.

Under this system, CTM applications can be filed by EU nationals or other nationals who belong to WTO countries, the Paris Convention, or countries that have agreements with EU nations regarding trademarks. A single application with the Office for Harmonization in the Internal market (OHIM) leads to a trademark registration in the entire EU.

The European Parliament recently approved Regulation 2015/2424, which amends the CTM system. The new EU Trade Mark Regulation and the corresponding EU Trade Mark Directive entered into force on March 23, 2016. The new regulation includes a number of amendments which affect the community trademark regime and trademark owners’ rights.

New Names for the EU Trade Mark

In 2016, the EU adopted many changed to the CTM system. These changes include a change in name for the CTM to the European Union trade mark (EUTM) and a change of name for the OHIM to the European Union Intellectual Property Office (EUIPO), though both will function similarly to the old versions.

Additionally, many substantive changes to trademark holders’ rights have been made. These include a change in class headings, which affect the application process and fees, the allowance of declarations in response to these changes to protect current trademark holders’ rights, and changes in the rules regarding transit of goods.

Class Headings

Under the new legislation, the filing fees for new EU trademark applications will only cover a first class, as opposed to three classes. Additional fees must be paid to secure additional classes. This aligns with longstanding U.S. practice.

Moreover, the provisions of Article 28(8) alter the interpretation of ICGS (International Classification of Goods and Services) class headings. This includes the list of goods and services covered by UE trademarks applied for before June of 2012.

Prior to June 22, 2012, when a trademark was granted under the CTM, it was deemed to be protected for all types of goods and services listed in ICGS list for that class, provided the trademark was registered with reference to the heading of the relevant ICGS class.

This approach, however, was not supported by EU nation states’ domestic legislation. Most EU countries only extend trademark protection to goods or services that were expressly indicated at the time of registration. Additionally, individual national trademark offices apply different approaches in interpreting class headings.

With the new amendments, broad protection using only class headings will stop. Thus, a CTM filed before June 22, 2012 which specified “musical instruments” in class 15 previously covered all possible goods in that class, which included musical instruments and accessories. However, as of March 23, 2016, the new amendments discontinue this kind of broad protection; now, only “musical instruments” would be covered, not anything else in that class.

Trademark holders who applied before June 22, 2012 may adjust their class headings and lists of declared goods and services to ensure their trademarks coverage is sufficient through a formal declaration to the EUIPO. This also applied to trademark holders which have trademarks that do not have any classification listed. Such declarations must be made by September 23, 2016 to be valid. They should specify the exact goods and services that the trademark is intended to cover. If the trademark holder does not file a declaration, then those trademarks will be deemed to only cover goods and services within the literal meaning of the class heading.

It is worth noting that once declarations have been made, and trademark scope has been specified in goods and services beyond an original class heading, there will be defenses available for potential infringers of that trademark that may not have fallen into the scope of the trademark previously. Specifically, a trademark owner will not be able to assert an infringement claim with respect to a newly specified good or service under an Article 28 declaration against a possible infringement that pre-dates the declaration. Thus, it would be prudent for trademark holders to declare goods and services which are substantially similar to those previously protected.

Transit of Goods

Under the old EU rules, the application of trademark law to transit of goods, whether legal or gray market, was not specifically dealt with. The old Regulation generally discussed the rights conferred by a CTM, and what constituted infringement of a trademark. In Section 9, paragraph 2, the old Regulation listed actions that could be considered infringement absent consent of the trademark owner: offering the goods for sale, affixing the trademark to goods or to the packaging thereof, stocking the goods for these purposes under the trademark, or putting goods on the market, among other things.

The old rules did not address the transit of goods from countries outside the EU into the EU. The Court of Justice of the European Union issued a few decisions regarding transit of goods, which did not categorize the transit of goods or products with a trademark as trademark infringement, but sometimes allowed trademark owners the right to prevent the release and free circulation of trademarked goods without authorization.

The new Regulation, in section 9, paragraph 4, expressly allows trademark holders to opposed transit of trademarked goods without authorization into or out of the EU. This right is granted even if the goods are not released for free circulation or intended to be placed on the EU market. Under the new Regulation, trademark owners may contest other customs such as free zones, warehousing, transshipment, temporary storage, temporary admission or inward processing. Customs authorities of the nation states are entitled to take enforcement actions. However, as a caution to trademark owners, section 9, paragraph 4 of the new Regulation also establishes that trademark rights may not be enforced, during the proceedings to determine infringement, if the shipper in questions proves through evidence that the trademark isn’t protected in the final destination country. Thus, though the new Regulation strengthens trademark owner rights in some respects, there are limitations.

Kinney & Lange Welcomes Summer Law Clerks

Posted on May 23, 2016 by Kinney & Lange, P.A.

Kinney & Lange is pleased to welcome Lauren Taylor and Richard Champion as 2016 summer law clerks. Lauren and Richard are both current law students at the University of Iowa College of Law. Lauren has a B.S.E. in Industrial Engineering from the University of Iowa. Richard has a B.S. in Chemistry from Eastern Oregon University, as well as an M.S. in Chemical Engineering and Ph.D. in Chemical Engineering and Nanotechnology from the University of Washington.

K&L Present Intro to IP Law at SME Chapter Meeting

Posted on March 9, 2016 by Kinney & Lange, P.A.

Kinney & Lange’s Larrin Bergman and Andrew Swanson will present “An Introduction to Intellectual Property Law” at the Society of Manufacturing Engineers’ Minneapolis Chapter meeting on March 16, 2016. Visit http://chapters.sme.org/011/ for more information.

K&L Associates Support Mid-Minnesota Legal Aid

Posted on February 9, 2016 by Kinney & Lange, P.A.

Kinney & Lange is proud to announce 100% participation in the Mid-Minnesota Legal Aid “One Hour of Sharing Associates’ Campaign for The Fund for Legal Aid.” The campaign encourages members of the legal community to make a donation equal to one billable hour. Mid-Minnesota Legal Aid is an organization that provides free legal services to people with low income and seniors in our twenty-county service area and people with disabilities statewide. Not only did Kinney & Lange reach 100% participation, it exceeded its fundraising goal this year and was the top donor in its group.

Supreme Court Clarifies Standard of Review for Claim Construction

Posted on November 1, 2015 by Kinney & Lange, P.A.

■ Nicholas J. Peterka

In Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., 574 U.S. ___, No. 13-854 (2015), the Supreme Court held that the Federal Circuit must apply the clearly erroneous standard when reviewing a district court’s resolution of subsidiary factual matters made during the court’s patent claim construction.

At dispute was the meaning of the term “molecular weight.” Each party presented extrinsic evidence in the form of expert testimony and, relying on patent owner Teva’s expert, the district court determined that “molecular weight” was not indefinite. Sandoz appealed the claim construction to the Federal Circuit, which reviewed de novo all aspects of the district court’s claim construction and determined that “molecular weight” was indefinite. The Supreme Court granted certiorari and found that, while the determination of questions of law (such as the final claim construction) are reviewed de novo, underlying determinations of subsidiary facts are reviewed for clear error. The Court stated that subsidiary factual matters arise when the court uses extrinsic evidence, such as expert testimony, to aid in claim construction. The Court’s holding will factor into whether a party uses extrinsic evidence, for a party aiming to add more finality to a district court’s claim construction may frame the issues so that extrinsic evidence is vital to the court’s claim construction and, conversely, a party seeking to overturn a claim construction may argue that intrinsic evidence is dispositive and extrinsic evidence is unnecessary. This decision will also affect summary judgment. Because the Court’s holding seemingly elevates the importance of factual determinations in claim construction, factual issues may become potential obstacles to summary judgment, which requires no genuine dispute as to any material fact.

Fair Use Avoids Takedown

Posted on November 1, 2015 by Kinney & Lange, P.A.

■ Adam E. Szymanski

In Lenz v. Universal Music Corp., Nos. 13-16106 and 16107 (9th Cir. Sept. 14, 2015), a panel of the 9th Circuit held that the Digital Millennium Copyright Act (DMCA) requires a copyright holder to consider fair use before sending a takedown notice to an online service provider, like YouTube® or Google®. Failure to consider fair use, the court determined, raises a triable offense issue as to whether the copyright holder formed a subjective good faith belief that the use was authorized by law.

The claim arose when Universal Music Corp. sent a takedown notice to YouTube to remove a video uploaded by Stephanie Lenz. The 29-second video, entitled “Let’s Go Crazy’ #1”, showed Lenz’s two young children dancing to the song Let’s go Crazy by Prince. YouTube removed the video after notification from Universal and told Lenz on June 5, 2007. Two days later, Lenz sent a counter-notification to YouTube, seeking to reverse the removal of her video. Universal protested and reasserted that the video infringed its copyright. Universal, however, failed to mention fair use. Lenz sued Universal under 17 U.S.C. §512(f) of the DMCA, alleging that Universal misrepresented that her video was infringing its copyright. That section of the DMCA allows an accused infringer to collect damages, including attorneys’ fees.

17 U.S.C. §512(c) sets forth the DMCA’s takedown procedures, which allow service providers to avoid copyright infringement liability for removing allegedly infringing material after receiving a takedown notice. 17 U.S.C. §512(c)(3)(A)(v) requires that a takedown notice include, among other things, a statement of a good faith belief that the allegedly infringing use is “not authorized by the copyright holder, its agent, or the law.” 17 U.S.C. §512(f), under which Lenz sued, provides that anyone who knowingly misrepresents that a material or activity is infringing may be liable.

At issue was whether fair use constitutes an authorization under law—pursuant 17 U.S.C. §512(c)(3)(A)—or, rather, an affirmative defense excusing copyright infringement. Looking to the fair use test codified in 17 U.S.C. §107 as a “limitation on exclusive rights”, the court determined that Congress created a specific type of non-infringing use, thereby authorizing it:

“Although the traditional approach is to view ‘fair use’ as an affirmative defense…it is better viewed as a right granted by the Copyright Act of 1976. Originally, as a judicial doctrine without any statutory basis, fair use was an infringement that was excused—this is presumably why it was treated as a defense. As a statutory doctrine, however, fair use is not an infringement.”

Thus, the court held that fair use is an authorization under law for the purposes of 17 U.S.C. §512(c)(3)(A)(v).

The court refused to impose an objective good faith belief requirement to the existing subjective one, as advocated by Lenz, reasoning that Congress could have done so when enacting the DMCA. The court held that the willful blindness doctrine may be used to show that a copyright holder misrepresented a good faith belief regarding fair use. The court ultimately concluded that “[c]opyright holders cannot shirk their duty to consider—in good faith and prior to sending takedown notification—whether allegedly infringing material constitutes fair use, a use which the DMCA plainly contemplates as authorized by law.”

Laches in Patent and Copyright Law: A Different Calculus

Posted on November 1, 2015 by Kinney & Lange, P.A.

■ Adam E. Szymanski

In SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC, No. 2013-1564 (Fed. Cir. Sept. 18, 2015), the Court of Appeals for the Federal Circuit, ruling en banc, held that laches remains a defense to legal relief in a patent infringement suit, despite the Supreme Court’s recent decision in Petrella v. Metro Goldwyn-Mayer, Inc., 134 S. Ct. 1962 (2014) regarding laches in copyright cases.

SCA sued First Quality for infringing U.S. Patent No. 6,375,646 directed to absorbent pants-type diapers. SCA sent a letter to First Quality on October 31, 2003, asserting that First Quality’s Prevail® All Nites™ product infringed its ‘646 patent. First Quality responded on November 21, 2003, saying that U.S. Pat. No. 5,415,649 invalidated the ‘646 patent. SCA requested a reexamination, and, in March 2007, the USPTO found the patent patentable over the ‘649 patent. SCA sued First Quality three-years later on August 2010, in response to which First Quality asserted laches.

In Petrella, however, the Supreme Court held that laches cannot be invoked to preclude adjudication of a claim for damages brought within the three-year window established for copyright infringement actions in 17 U.S.C. §507(b). Paula Petrella sued Metro Goldwyn-Mayer nine years after last contacting the Metro asserting infringement to her copyright in the film “Raging Bull.” The Court determined that the statute of limitations in §507(b) takes account of a delay in suing and removes judicial discretion in addressing timeliness.

The Federal Circuit distinguished its holding from Petrella on its reading of 35 U.S.C. §282(b)(1). Section 282 lists the defenses available in a patent invalidity or infringement action and includes a provision stating “[a]ny other fact or act made a defense by this title.” The Federal Circuit relied on the commentary of P.J. Federico, an original drafter of the 1952 Patent Act, which stated that §282 included equitable defenses like laches. Combining that with Senate and House reports stating the breadth of such defenses, the court concluded that Congress had codified a laches defense into §282 of the Patent Act. The court further concluded that laches as codified can be applied to recovery of legal relief rather than just equitable relief, finding that patent case law supported the use of laches to preclude damages.

The Federal Circuit further noted a distinction between patent and copyright law in proving infringement: “copyright infringement requires evidence of copying, but innocence is no defense to patent infringement.” Proof of access, the court found, ensures that a potential infringer is generally aware of the risk of infringement. As a safeguard, a potential infringer can seek to establish evidence of independent creation. The court concluded that for patents “the calculus is different.” Because patent law lacks independent creation, laches provides the only defense against late claims seeking to collect on a commercial windfall.

Perhaps time will tell whether the Supreme Court agrees with the Federal Circuit’s new math.