Failure to Identify Intervening Rights During Discovery Sinks Prosecution Laches Defense

Plaintiff's motion for summary judgment that its infringement claims were not barred by prosecution laches was granted. "[T]his Court concludes that [plaintiff] is correct and that the Supreme Court has addressed the issue of intervening rights. In both [Crown Cork & Seal Co. v. Ferdinand Gutmann Co., 304 U.S. 159 (1938)] and [General Talking Pictures Corp. v. Western Electric Co., 304 U.S. 175 (1938)], the Supreme Court held that prosecution laches would not apply absent intervening adverse rights. Although the precedent is old, it is controlling. Therefore, this Court likewise finds that to prevail on a claim of prosecution laches, the defendant most prove both: 1) unreasonable and unexplained delay, and 2) intervening adverse rights. . . . [Defendants] failed to identify any intervening rights during discovery."

Ronald A Katz Technology Licensing L P v. Time Warner Cable Inc., 2-07-cv-02134 (CACD May 5, 2010) (Klausner, J.)