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Make it 9000,000,001.

The non-presumptive laches defense applies specifically to this circumstance.

Because the Open Invention Network and others have repeatedly requested that Microsoft identity the infringing code, the laches defence becomes non-presumptive much earlier.

http://www.converium.com/2103.asp

It's not called scamming, but it may in fact cost them the case. Sure a patent is valid for 20 years, but waiting a long time to enforce it could lose your rights to it early under US law.

There is. Its called LACHES!

http://www.converium.com/2103.asp

I'm not an attorney but this is not strictly true. The applicable legal doctrine to be invoked is known as laches. A quickly Googled search brought up this discussion, which, while somewhat directed to lawyers, gives a gist of what an accused infringer can do to mitigate damages after having been judged to infringe valid patent claims.

Basically, invoking the laches defense will prevent all infringing activity prior to the filing of the suit from being included in any damages, but will not prevent a possible assessing of damages after the file, not bar the judge from issuing an injunction to stop further infringement. The patent law also provides a time limit of six years prior to the filing date of the suit for assessing damages; this time period has been used by judges in the consideration of the laches question (see second link for the full discussion of how this works).

I don't think you're right.

http://www.converium.com/2103.asp
"Laches is recognized as an equitable defense available to defendants in patent infringement litigation under 35 U.S.C. Section 282 (1988). Laches enables the infringer to avoid liability if the patent holder delays too long before commencing litigation. The doctrine flows from the longstanding, fundamental legal principle that equity will not protect those who sleep on their rights."

Patent violation isn't a strict liability issue, unlike copyright.

You're correct about the burden of proof being on the defendant.

IANAL, but I think the applicable legal doctrine is called "laches." This link gives a brief discussion of the case law and some recent cases.

Basically, it is a defense invoked by the infringer which, at most, bars liablility for infringing acts done before the patent owner's lawsuit was filed. For the defense to be successful the infringer has to show that the patent owner has waited "unreasonably" long; the unreasonableness is subject to lots of consideration.

What the doctrine does not do, however, is bar other remedies, such as damages for acts occuring after the filing of the lawsuit, and/or injunctions against making, using or selling the infringing device, method, etc.(at least for up to the remaining term of the patent).

OK. done that. now what?

OK, I see. look up laches as it refers to patent law. looks like I could be mistaken.

Laches enables the infringer to avoid liability if the patent holder delays too long before commencing litigation. The doctrine flows from the longstanding, fundamental legal principle that equity will not protect those who sleep on their rights.

[...]

The U.S. Supreme Court has long held the laches defense applicable to patent infringement cases. The defense contains two elements:

The patent holder delayed bringing suit and that delay was unreasonable and inexcusable; and The alleged infringer suffered materially prejudicial harm from the delay.

There is no concept as patent defense.

Not true. It is possible in certain cases to defend against a patent claim by arguing the doctrine of laches.

From http://www.converium.com/2103.asp:

Laches is recognized as an equitable defense available to defendants in patent infringement litigation under 35 U.S.C. Section 282 (1988). Laches enables the infringer to avoid liability if the patent holder delays too long before commencing litigation. The doctrine flows from the longstanding, fundamental legal principle that equity will not protect those who sleep on their rights.

The laches doctrine assures that old grievances will some day be laid to rest, that litigation will be decided on the basis of evidence that remains reasonably accessible and that those against whom claims are presented will not be unduly prejudiced by delay in asserting them. Inevitably, it means that some potentially meritorious demands will not be entertained. But there is justice too in an end to conflict and in the quiet of peace.

The U.S. Supreme Court has long held the laches defense applicable to patent infringement cases. The defense contains two elements:
# The patent holder delayed bringing suit and that delay was unreasonable and inexcusable; and
# The alleged infringer suffered materially prejudicial harm from the delay.

See converium.com's Doctrine of Laches and Patent Infringement for specific details of laches and patents. (short version: yes, it applies to patents) In this case, I'd say the "infringement" in question (JPEG) was "open and notorious" for more than six years prior to now, which allows for the presumption of laches, which means that the patent holder has to try and prove that laches shouldn't apply instead of requiring that the defendant prove that it does apply.

Actually, that isn't quite true. If you check the Doctrine of Laches you'll see that if a defendant knows or should have reasonably known about patent infringment (possibly also copyright, not sure about that) they can't wait a long time and then file suit. See Wanlass vs GE for an example of this.

Wanlass patented a motor for an airconditioner in 1977, and tried to sell it to several large companies, including GE. GE told him to buzz off and they didn't care and would use that motor without his approval. Wanlass sued GE in 1995, and the courts ruled that since he knew they intended to use it (and indeed had tested some GE airconditioners in 1985) he wasn't intitled to anything from their infringement. At the same time, the courts held that he WAS entitled to compensation in Wanlass vs Fedders, because although Fedders had refused to license the patent, he didn't actually find out that Fedders was infringing until shortly before filing the suit.

Then you thought incorrectly. Trademarks are subject to such a required defense, but patents and copyrights are not.

There is the doctrine of laches, which allow a judge to hold that a patent holder, having allowed a use of their patent to go on without notice, cannot collect damages for use of their patent prior to filing suit, but this in no way invalidates their patent nor does it prevent them from collecting damages if the same defendant should happen to infringe on their patent in the future. (Laches is basically a way of wedging the reasonable "but I didn't know it was a problem" defense into patent law)

And no, IANAL, but I do know how to use Google (TM).

here

Its been awhile since I've read it, but I believe the thing is .. you can selectively enforce patents, but you also cannot purposely _delay_ litigation protecting your patents such that the delay harms the accused infringer.

Basically means "You are not responsible for policing the marketplace and cannot lose enforcability of your patent by not actively protecting it; however, you are also not allowed to purposely delay protecting your patent. If you become aware of an infringer, you can't sit around for a rainy day when you really need the money to commence an infringement suit."

It is true that a trademark must be defended or lost, but that does not imply there are no "snooze and lose" aspects to patents. In fact, the original poster is somewhat correct. The doctrine of laches. Patentees against whom the laches defense has been successfully invoked are barred from collecting only those damages that accrued prior to filing suit.

The defense contains two elements:
1) The patent holder delayed bringing suit and that delay was unreasonable and inexcusable; and
2) The alleged infringer suffered materially prejudicial harm from the delay.

The doctrine is supported by caselaw: A.C. Auckerman Company v. R.L. Chaides Construction Co., 960 F.2d 1020 (Fed. Cir. 1992), citing Lane & Bodley Co. v. Locke, 150 U.S. 193 (1893).

US patent law doesn't require you to disclose your patent within any given period of time.

Not exactly. The common-law doctrine of laches states that if a patent holder is aware of an infringement that has been ongoing for years, he can't sue for damages on infringements that occurred before the suit was filed; all he can get is an injunction and perhaps damages for infringements that occurred during litigation. If it has been going on for six or more years, the alleged infringer has more of a chance in court because the burden of proof shifts to the patent holder.

Patents may be defended at the owners choice. They don't expire due to lack of use. Trademarks
do if they aren't defended.

Not exactly. A patent holder can lose the ability to sue infringers if the patent holder takes an unnecessarily long time to bring suit. It's called the doctrine of laches.

That is not correct. You are thinking of trademark law.

You are wrong - the original poster is correct.

In patent law, there is something known as the doctine of laches. Essentially it states that if a patent holder delays litigation for an unnecessarily long time, they lose the right to sue those who have infringed.

Anyone have more information on this?

Though there may not be a bar to bringing this type of claim, the doctrine of laches may be a defense to enforcement for some defendants. Basically laches says that if a plaintiff delays too long in asserting its claim against a defendant, and the defendant was prejudiced by plaintiff's delay, plaintiff loses. That prejudice may be a simple as thinking that plaintiff accepted your use of its patent and investing time and money to continue developing it.
Of course, laches will not help anyone who decides to adopt infringing technology AFTER they have been explicitly told that they will be sued if they do. It also doesn't help anyone who can't prove prejudice from a plaintiffs delay.
See a more detailed explanation at Converium.

Amazingly, you can't do it. It is called the equitable defense of laches. Laches says that if you have an unreasonable delay is bringing suit against someone, you can't get any damages for their infringement of your patent during your delay. Your patent doesn't expire, but it become very limited in who you can sue with it. You can read MUCH more about laches at this site.