UIC Review of Intellectual Property Law


Daniel Brainard

Citations to This Work

  • Madelyn S. McCormick, Keeping Laches: The Loss of the Laches Defense in Copyright Infringement Cases Does Not Mean Depriving Patent Attorneys of the Time-Honored Defense, 50 Suffolk U.L. Rev. 177 (2017)

  • Sue Ann Ganske, Samsung v. Apple, Life Technologies v. Promega, Sca Hygeine Products v. First Quality Baby Products, Tc Heartland v. Kraft, Impression Products v. Lexmark, and Sandoz v. Amgen: The U.S. Supreme Court Decides Six Patent C, 17 J. Marshall Rev. Intell. Prop. L. 162 (2017)


Common law equitable doctrines are fundamentally at odds with modern statutes of limitations. While modern copyright courts found new ways to allow laches and the Copyright Act’s three year statute of limitations to coexist, the foundation for doing so was significantly weakened. The Supreme Court in Petrella v. Metro-Goldwyn-Mayer restricted the use of laches as a defense to copyright infringement to only extraordinary circumstances and provided two Circuit Court cases as demonstrating examples of laches for future use. In actuality, however, it appears the Supreme Court and Circuit Courts failed to analyze the facts in depth and ended up rendering a decisions that thwarted the principles underlying laches. Additionally, those Courts seemed to have forgotten about a restriction to laches as a defense: the unclean hands doctrine. This comment assesses where laches currently is in copyright law and proposes a return to equitable principles, complete with a restrictive test to ensure that equitable defenses are truly equitable in future delayed claims for copyright infringement.