Did you know?
You can earn activity points by filling your profile with information about yourself (what city you live in, your favorite team, blogs etc.)
Laches validity would lose if pre-existing factors were proven
you would lose on a laches defense. Presumptions are rebuttable by the patentee and the burden of proof on a two prong analysis shifts back to the accused infringer.
Equitable estoppel might be a better defense.
To establish sufficiently an equitable estoppel defense, the alleged infringer has the burden of proving (1) that the patentee has already communicated to the alleged infringer either by its words, silence, or conduct that it would not enforce its patent rights against said alleged infringer; (2) that the alleged infringer has relied on this communication; and (3) that the alleged infringer, because of its reliance, would be materially prejudiced if the court allows the patentee to proceed with its claim. Although laches has a rebuttable presumption based on a lapse of time, no such presumption exists for equitable estoppel. Instead, conduct, rather than time, triggers an estoppel defense. Consequently, the defendant at all times carries the burden of proving the elements of equitable estoppel by a preponderance of the evidence regardless of any delay.
