Monday, April 8, 2013

Seventeen Year Prosecution History Alone does not Result in Laches

The court denied plaintiff's motion for summary judgment that defendants' reissued DNA fingerprinting patent was unenforceable due to laches because of a 17 year prosecution history from the original application to issuance. "[Plaintiff] has not shown that the inventors deliberately delayed prosecution, either to enable [defendants] to capture later-developed technology or to extend the term of the patent. Nor has [plaintiff] shown that any of the delays were unreasonable. . . . [Plaintiff] cannot explain what it would have done differently if the patent had issued earlier, or how it relied on, or was harmed by, the delay. [It] raises the specter that long patent prosecutions will hide inventions from the public, slowing scientific progress. But that did not occur here. . . . No one disputes that the invention gained widespread use in the genetic analysis industry despite the delay."

Promega Corporation v. Applied Biosystems, LLC, 1-13-cv-02333 (ILND April 4, 2013, Order) (Posner, C.J.).

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