United States District Court, N.D. Illinois, Eastern Division
October 10, 2005.
PSN ILLINOIS, INC., Plaintiff,
IVOCLAR VIVADENT, INC.; DENTSPLY INTERNATIONAL, INC.; DEN-MAT CORPORATION; MICRO DENTAL LABORATORIES; NATIONAL DENTEX CORPORATION; and KNIGHT DENTAL STUDIO, INC., Defendants. IVOCLAR VIVADENT, INC., Counterclaimant and Third Party Plaintiff, v. PSN ILLINOIS, INC., Counterclaimant-defendant, and GERALD G. McLAUGHLIN, Third-Party Defendant.
The opinion of the court was delivered by: ROBERT GETTLEMAN, District Judge
MEMORANDUM OPINION AND ORDER
On November 9, 2004, plaintiff PSN Illinois, Inc. ("PSN") filed
this action alleging infringement of patent number 4,579,530
(`"530 patent"), entitled "Fabrication of Porcelain
Restorations." The `530 patent claims methods for making dental
porcelain veneers. Plaintiff alleges that the Empress system
produced by defendant Ivoclar Vivadent, Inc. ("Ivoclar")
infringes the `530 patent, and that the other defendants, dental
laboratories, contribute to the infringement by using the Empress
system. Ivoclar has filed a motion for summary judgment under
Fed.R.Civ.P. 56 on the its defenses of non-infringement and
The issue of infringement is hotly contested. On September 27,
2005, at defendant's helpful suggestion, the court held a hearing
to allow the parties to present their respective products and
processes. The parties' able demonstrations and explanations were
informative and professional, and will aid any necessary claim
construction. If defendant establishes that plaintiff's claims
are barred by laches, however, there will be no need to
adjudicate infringement because the patent has expired. The court
therefore bifurcates the issues of laches and infringement, and
will hold a bench trial on the issue of laches prior to resolving
the question of infringement. FACTS*fn1
PSN is an Illinois corporation, and the owner of the `530
patent. Ivoclar is a Delaware corporation that manufactures
materials used to fabricate porcelain dental veneer restorations,
including those sold under the "Empress" trade name. The `530
patent was issued to Dr. Gerald G. McLaughlin ("McLaughlin"), the
named inventor, on April 1, 1986. Reexamination Certificate BI
4,579,530 was issued July 11, 1989, which narrowed the scope of
the patent claims to porcelain veneers specifically. The `530
patent expired November 21, 2004.
The process described by the `530 patent is a form of a
technique that is commonly known in the industry as a
"refractory" technique for creating porcelain dental veneers,
which are attached to the surface of a tooth to replace lost
tooth structure and/or enhance the aesthetic appearance. The
patent describes a method of creating a veneer by brushing a
liquid slurry made of porcelain powder and water onto a "statue"
or model of a patient's tooth. The porcelain is hardened on the
statue and the statue is removed by "croding" by blasting it with
glass beads, leaving the veneer. The process used by defendant's
Empress products is commonly known in the industry as a "lost
wax" or "pressable" technique.
On April 20, 1993, Dr. George W. Tysowsky ("Tysowsky"),
defendant's vice president of research and development, gave a
presentation at a conference held by the American Academy of
Cosmetic Dentistry ("AACD"). The seminar was entitled,
"Presenting IPS Empress: A New Ceramic Technology," and was
described in the conference brochure as presenting a "a new ceramic technology and clinical technique associated with the
preparation, lab fabrication, and cementation of the IPS Empress
restoration." McLaughlin attended at least a portion of
Tysowsky's presentation, and later wrote two letters to Tysowsky
dated May 11, 1993, and September 4, 1993, stating that he
"really enjoyed" the presentation and wanted to include it in an
upcoming educational program that he was organizing.
Defendant asserts that after attending the AACD seminar,
McLaughlin knew of defendant's Empress product "in detail."
McLaughlin states that he heard Tysowsky discuss an Empress
inlay,*fn2 not an Empress veneer. McLaughlin denies that the
AACD presentation was detailed, and that it did "not discuss the
specific steps that a laboratory performs in fabricating a
veneer." Defendant does not deny that Tysowsky did not
demonstrate the process of fabricating an Empress porcelain inlay
restoration provided to the AACD participants, but rather
displayed a pre-fabricate inlay.
During discovery in the instant case, McLaughlin produced a
manual from his records regarding Empress products that defendant
claims was mailed to McLaughlin's home in 1994. The manual
describes a "new pressed ceramic system" from Ivoclar, and the
use of glass ingots. It states, "The base glass is melted,
quenched, fried, ground, remelted, and tempered into homogeneous
glass ceramic that is pressed into ingots by the manufacturer and
refired for construction of restoration veneers."
For a period of time the `530 patent was held by a company,
Yukiyo, Ltd. ("Yukiyo"), of which McLaughlin was president.
During the early to mid 1990s, Yukiyo asserted the `530 patent against approximately 27 dental laboratories. Yukiyo did
not assert the patent against defendant or its Empress product.
The cases were consolidated in In re Yukiyo Patent Lit. in the
Northern District of California. The defendants challenged the
validity of the patent under 35 U.S.C. § 102(b), arguing that the
invention was described in a printed publication more than one
year prior to the patent application. After the Yukiyo jury
found the patent was not invalid, the district court determined
it was invalid as a matter of law, but was reversed by the
Federal Circuit. Yukiyo, Ltd. v. Watanabe, 1997 WL 327345,
unpub. op. (Fed. Cir. 1997). The case was settled in 1999, prior
to a second validity adjudication.
From approximately 1995 through 1997, McLaughlin and defendant
engaged in intermittent discussions concerning licensing the `530
patent. McLaughlin traveled to defendant's plant in Buffalo, New
York. During this time period, McLaughlin did not accuse the
Empress product of infringement. Plaintiff asserts that defendant
told McLaughlin on "several occasions that it did not need a
license for his patent because its veneer restoration system was
based on a completely different technology." McLaughlin testified
that in December 1992 and in 1995 defendant told McLaughlin that
the Empress system was different from the `530 patent method
because Empress used different materials, including "liquid
glass," and employed the "lost wax" method. McLaughlin asked
defendant for copies of its Empress instructions, but defendant
refused to provide them unless McLaughlin purchased an Empress
system at a cost of approximately $10,000 to $20,000.
Plaintiff, McLaughlin's assignee, alleges that McLaughlin first
became aware of defendant's infringement in October 2004, a month
before the instant law suit was filed, when he visited
defendant's website and viewed technical information concerning
Empress, including its manual, instructions, and other technical data that McLaughlin
states that he had not previously seen. According to McLaughlin,
the most significant discovery in October 2004 was that the ingot
used by Empress, which defendant had previously said was a liquid
glass, "was in fact porcelain powder pressed into the shape of an
ingot." Plaintiff argues that deposition testimony of other
people in the veneer industry demonstrates that "the veneer
industry did not know that the Empress ingot was made of powder."
Defendant argues that the information available on its website in
2004 was the same information contained in 1994 Empress manual
produced from McLaughlin's files during discovery, and in
Tysowsky's presentation to the AACD in 1993.
SUMMARY JUDGMENT STANDARD
A movant is entitled to summary judgment under Rule 56 when the
moving papers and affidavits show there is no genuine issue of
material fact and the movant is entitled to judgment as a matter
of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986); Unterreiner v. Volkswagen of America,
Inc., 8 F.3d 1206, 1209 (7th Cir. 1993). Once a moving party
has met its burden, the nonmoving party must go beyond the
pleadings and set forth specific facts showing there is a genuine
issue for trial. See Fed.R.Civ.P. 56(c); Becker v.
Tenenbaum-Hill Associates, Inc., 914 F.2d 107, 110 (7th Cir.
1990). The court considers the record as a whole and draws all
reasonable inferences in the light most favorable to the party
opposing the motion. See Fisher v. Transco Services-Milwaukee,
Inc., 979 F.2d 1239, 1242 (7th Cir. 1992).
Under 35 U.S.C. § 282, laches is an equitable defense that bars
recovery by the plaintiff for any damages incurred before the
initiation of the infringement suit. A.C. Aukerman Co. v. R.L.
Chaides Constr. Co., 960 F.2d 1020, 1028 (Fed. Cir. 1992) (en
banc). Laches requires proof that the patentee unreasonably and inexcusably delayed filing
suit and that the delay resulted in material prejudice to the
defendant. Wanlass v. Gen. Elec. Co., 148 F.3d 1334, 1337 (Fed.
Cir. 1998). A presumption of laches arises when more than six
years has elapsed between the time the plaintiff knew or should
have known of the alleged infringing activity and the time of
filing suit. Aukerman, 960 F.2d at 1028. When the presumption
is in effect, the court infers unreasonable delay and prejudice
from the length of the delay, and the burden going forward with
the evidence shifts to the plaintiff. Id. When the presumption
does not arise, the party claiming laches bears the burden of
proving that the delay was unreasonable and inexcusable, and that
it materially prejudiced the party claiming laches. Id.
The issue of laches is committed to the sound discretion of the
court. Aukerman, 960 F.2d at 1032. Because the nature of the
laches defense is fact-intensive, summary judgment often will be
inappropriate, but may be granted under some circumstances.
Rockwell International Corp. v. SDL, Inc.,
103 F. Supp. 2d 1192, 1196 (N.D. Ca. 2000) (denying summary judgment on laches
defense); see also Wanlass v. Fedders Corp., 145 F.3d 1461,
1464 (Fed. Cir. 1998).
The period of delay begins at the time the patentee had actual
or constructive knowledge of the defendant's potentially
infringing activities. General Electric, 148 F.3d at 1337.
Plaintiff filed the instant action November 9, 2004. Thus, to
trigger the presumption, defendant must show the absence of
genuine disputes on material issues as to whether plaintiff knew
or should have known of the alleged infringement on or before
November 9, 1999. Rockwell, 103 F. Supp. 2d at 1196. The
parties do not suggest a hard and fast rule regarding the level
of knowledge requisite to trigger laches, and the equitable
nature of laches generally does not warrant mechanical rules.
Id. at 1197; see also Aukerman, 960 F.2d at 1034. The
Rockwell court noted that the plaintiff "must have had more than a mere suspicion but
less than absolute assurance of defendant's alleged infringement
in order to activate the laches clock." Id.
Defendant accuses McLaughlin and PSN of engaging in the type of
"litigation game-playing" that the patent law of laches,
particularly the six-year presumption, is meant to prevent.
According to defendant, McLaughlin has had knowledge of
defendant's alleged infringement since at least 1993,
unreasonably delayed filing this action for nearly twelve years,
and then, at the eleventh hour, assigned his patent to plaintiff
in an attempt to allow plaintiff to exploit McLaughlin's
invention but avoid the laches defense. Even assuming plaintiff
and McLaughlin are playing such a "game," it does not change the
laches analysis because plaintiff stands in McLaughlin's shoes
with respect to the laches defense. A patentee "cannot avoid the
consequences of his laches by transferring the patent, and a
prior patent-holder's actions prior to an assignment are imputed
to the assignee." Eastman Kodak Co. v. Goodyear Tire & Rubber
Co., 114 F.3d 1547, 1559 (Fed. Cir. 1997).
If defendant is correct that McLaughlin knew or should have
known of defendant's alleged infringement more than six years
before plaintiff filed the instant lawsuit, a presumption of
laches would arise and preclude the claims of plaintiff,
McLaughlin's assignee. Plaintiff, however, asserts that
McLaughlin did not know that the Empress product utilizes alleged
porcelain powder, which is the focus of his infringement claim,
until viewing defendant's website in 2004, a month before
plaintiff filed the instant action. For the reasons discussed
below, plaintiff has raised triable issues of material fact
concerning when McLaughlin knew or should have known about
defendant's alleged use of porcelain powder, and therefore the
presumption does not apply. Defendant's arguments equate McLaughlin's knowledge of the
Empress product with his knowledge of its alleged use of
porcelain powder. Defendant asserts, "All that matters is that
Dr. McLaughlin knew of the Empress product in 1993." Knowledge of
a product, however, does not automatically indicate actual or
constructive knowledge of infringement. Courts, including several
cited by defendant in support of other arguments, have repeatedly
rejected the use of the laches defenses against patentees who
were aware of an infringing product more than six years before
filing suit, but were not aware of the infringement. See, e.g.,
Fedders, 145 F.3d 1461 (more than six years); Bingo Brain,
Inv. v. California Concepts. Inc., 2001 WL 1631920 (N.D. Ill.
Dec. 19, 2001) (eleven years); Rockwell, 103 F. Supp. 2d 1192
Courts impose a duty on patentees to police their rights. See
General Electric, 148 F.3d at 1338. The case law charges a
patentee with such knowledge as it might have obtained on
reasonable, diligent inquiry. See Id.; Rockwell,
103 F. Supp. at 1199. "If a patentee knows of the existence of a product
or device that (i) embodies technology similar to that for which
he holds a patent and (ii) uses that similar technology to
accomplish a similar objective, he has a duty to examine the
product or device more closely to ascertain whether it infringes
his patent." Odetics, Inc. v. Storage Tech. Corp.,
919 F. Supp. 911, 917-18 (E.D. Va. 1996) (vacated on other grounds). In the
instant case, the question is whether McLaughlin knew or should
have known that the Empress products allegedly infringe the `530
patent before November 9, 1999, six years before plaintiff filed
the instant action.
Defendant argues that McLaughlin had sufficient knowledge of
the Empress product to allege infringement prior to 1999 based
on: (1) his attendance at the AACD conference in 1993, (2)
defendant's manual regarding the Empress product mailed to his
home in 1994; (3) his discussions with defendant in the mid-1990s; and (4) the Yukiyo
litigation in the mid-1990s. Plaintiff responds that McLaughlin
did not have either constructive or actual knowledge that the
Empress product "embodies technology similar" to the `530 patent
until 2004, when he discovered that it uses what he alleges is a
Plaintiff has raised questions of fact regarding each of these
alleged sources of McLaughlin's knowledge. First, McLaughlin
testified that the AACD presentation did not demonstrate the
Empress process or provide any information, much less details,
about Empress veneers. Neither the brochure nor McLaughlin's
letters to Tysowsky, which merely compliment his presentation in
general terms without referring to its substance, establish that
the seminar included technical details about Empress veneers.
Plaintiff has thus raised a triable issue of fact whether he knew
or should have know of defendant's infringement based on the AACD
Second, it is not clear at this point in the litigation that
the manual contained sufficient information to alert McLaughlin
to potential infringement. The manual states,
The base glass is melted, quenched, dried, ground,
remelted, and tempered into homogenous glass ceramic
that is pressed into ingots by the manufacturer and
refired for the construction of restoration veneers.
Defendant thus argues that by simply reading the manual in 1994,
McLaughlin knew the precise information" that McLaughlin claims
he needed to determine whether Empress infringed. The fact that
the manual and the website were identical would be damaging to
plaintiff's case because McLaughlin testified that the website
information was sufficient for him to accuse defendant.
Defendant, however, does not provide the court with a copy of the
website or its text, and thus the court cannot resolve the issue
on summary judgment. McLaughlin testified that his most significant discovery in 2004, prompting the filing of the
instant action, was that the Empress product uses "porcelain
powder pressed into the shape of an ingot." Defendant does not
argue, however, that "base glass" is equivalent to "porcelain
powder," although the court notes that this was suggested by
plaintiff at the hearing held on September 27, 2005, during which
the parties demonstrated and explained the Empress and McLaughlin
Defendant cites Odetics, Inc. v. Storage Technology Corp.,
919 F. Supp. 911 (E.D. Va. 1996), in which the district court
applied the six-year presumption, in support of its argument that
after receiving the manual McLaughlin knew or should have known
of the infringement. Odetics. however, is distinguishable
because the patentee admitted that he was aware more than eight
years before filing suit that the accused product included
"similar technology" to the patent in suit. Id. at 917. In the
instant case, McLaughlin vigorously denies that he knew or
suspected prior to 2004 that the Empress product uses what
plaintiff alleges is a porcelain powder.
Third, there are questions of fact regarding McLaughlin's
discussions with defendant in the mid-1990s, which defendant
suggests provided McLaughlin with sufficient knowledge to trigger
the laches clock. Defendant suggests that McLaughlin discussed
licensing the `530 patent to defendant, and notes that other
courts have held that licensing negotiations support a finding
that a patentee was on inquiry notice. See, e.g., Wanlass v.
General Electric, 148 F.3d 1334, 1339 (Fed. Cir. 1998).
Plaintiff, however, asserts that these conversations did not
reveal or suggest defendant's use of porcelain powder, and that
defendant falsely assured McLaughlin that the `530 patent did not
infringe. Moreover, plaintiff claims that defendant stymied
McLaughlin's attempts to learn more about the Empress product.
See Potash Co. of America v. International Minerals & Chemical
Corp., 213 F.2d 153, 155 (10th Cir. 1954) ("[I]f material
facts are concealed or misrepresented by a suspected wrongdoer, and if in
reliance thereon the person wronged is deceived and his
suspicions allayed for a while, a court of equity will not grant
the wrongdoer any advantage resulting from the lapse of time.").
Although McLaughlin's testimony suggests that he may have
suspected infringement during this time period, mere suspicion is
not sufficient to expose a patentee to a presumption of laches,
Rockwell, 103 F. Supp. 2d at 1197, particularly in the face of
alleged deception by the infringer. At the summary judgment
stage, the court must read all evidence in the record in the
light most favorable to the nonmovant. Abdullahi, 2005 WL
2179827, at *9.
Fourth, according to plaintiff, Yukiyo did not assert the `530
patent against defendant during the Yukiyo litigation because
McLaughlin had no reason at that point to believe that the
Empress product infringed. Defendant argues that Yukiyo
effectively conceded that the Empress product did not infringe
the `530 patent by distinguishing Empress from the products it
accused of infringement, and by stating in correspondence with
certain dental labs that the Empress product would not be
asserted as an infringement of the `530 patent. Plaintiff
responds that at that time, McLaughlin was not aware and had no
reason to believe that the Empress product infringed. The
prosecution history of the Yukiyo litigation, as presented by
the parties, does not establish what McLaughlin knew or should
have known about Empress, but only that he believed other methods
not Empress infringed his patent.
Yukiyo's discovery responses and correspondence, as well as
common sense and the rules of discovery, strongly suggest that
McLaughlin investigated the Empress product before distinguishing
it from the `530 patent, or at least that he was on inquiry
notice. Porcelain powder, however, was not the subject of the
Yukiyo litigation. The record does not establish what, if any, inquiry McLaughlin conducted before stating that
the products were distinguishable, or on what basis he believed
that they were. Read in one light, McLaughlin's aggressive
policing of his patent when he became aware of possible
infringement undermines the argument he was aware of defendant's
alleged infringement but simply chose not to prosecute. See
Rockwell, 103 F. Supp.2d at 1199 (patentee was less persistent
than patentees in other cases who discharged their inquiry duty,
but did not "sleep on its rights."). There is an alternate
interpretation of the Yukiyo litigation, however, that favors
defendant. It may be that McLaughlin was on notice of defendant's
possible infringement during the Yukiyo litigation, but that he
was either unable to pursue claims against defendant because of
resource constraints or that he simply chose not to. Neither
explanation would excuse McLaughlin's failure to police his
patent if he was in fact on inquiry notice.
Defendant argues McLaughlin was on notice inquiry and thus had
a duty to investigate. In support of its argument, defendant
cites several cases in which the Federal Circuit affirmed a
district court's grant of summary judgment based the six-year
laches presumption. Several of these cases, however, are
distinguishable because they involved "open" and "notorious"
infringement, and products that were more easily testable. In
Wanlass v. General Electric, 148 F.3d 1334, 1339 (Fed. Cir.
1998), for example, the court held that the patentee's claims
were barred by laches because the defendant's "notorious sale of
easily testable products," air conditioners, gave the patentee
the opportunity to discover the alleged infringement earlier.
Similarly, the court found that the patent at issue in Hall v.
Aqua Queen Mfg., 93 F.3d 1548 (Fed. Cir. 1996), involved an
easily testable product, a waterbed. In the instant case, plaintiff argues that the Empress product
was not so easily testable because the ingot's alleged powder
composition is revealed only by microscopic examination, and that
the law does not require such involved investigation by a
patentee. IXYS Corp. v. Advanced Power Technology, Inc.,
321 F. Supp. 2d. 1156, 1161 (N.D. 2004) (denying summary judgment on
laches where technology made it necessary to "actually slice the
device open and examine its component structure under a
microscope."). In further support of its argument that the
ingot's composition is difficult to discern, plaintiff asserts
that the common belief in the industry remains that the Empress
ingot is made of glass, not powder. See Imagexpo, L.L.C. v.
MicropsoftCorp., 281 F. Supp. 2d 846, 850-51 (E.D. Va. 2003) (no
laches where knowledge of defendant's source computer code, not
generally known in industry, was needed to discern infringement).
Indeed, even defendant's own witnesses admit that the ingot
"obviously" appears to be comprised of something other than
powder. Thus, plaintiff has at least raised question of fact
whether defendant's infringement was "open" and "notorious."
Lastly, McLaughlin alleges that he received false assurances of
non-infringement from defendant and that his attempts to gain
more information on the Empress product were rebuffed by
Defendant has failed to show the absence of genuine issues of
material fact whether McLaughlin knew or should have known of
defendant's alleged infringement before November 9, 1999.
Defendant suggests that plaintiff is "simply not being honest on
the issue of his knowledge." The credibility of witnesses,
however, cannot be resolved on summary judgment. Abdullahi v.
City of Madison, 423 F.3d 762, 2005 WL 2179827, at *9 (7th
Cir. 2005). Accordingly, the six-year presumption does not apply
to the instant case. Without the benefit of the six-year presumption, the burden
remains on defendant to establish the absence of a disputed issue
of material fact whether plaintiff's delay was unreasonable and
inexcusable, and whether defendant suffered either economic or
evidentiary prejudice that would have been avoided had plaintiff
filed suit earlier. General Electric, 148 F.3d at 1337;
Aukerman, 960 F.2d at 1028. Here, plaintiff has raised triable
issues of material fact that it filed the instant action
approximately one month after McLaughlin learned of the alleged
infringement, and defendant does not argue that one month may be
considered unreasonable or that such a short period caused it
prejudice. The cases cited by defendant in support of its
prejudice arguments are thus inapposite because those courts
concluded that the plaintiff had delayed for a period of years.
See HotWax, Inc. v. Turtle Wax, 191 F.3d 813, 824 (7th
Cir. 1999); AptarGroup, Inc. v. Summit Packaging Systems, Inc.,
1996 WL 114781 (N.D. Ill. March 14, 1996).
Plaintiff also argues that the court should deny the motion for
summary judgment because defendant has failed to offer any
evidence of either economic or evidentiary prejudice, as required
to establish a laches defense. In particular, plaintiff argues
that defendant fails to establish, or even claim, that its
increased expenditures on the development and marketing of the
Empress products were related to the alleged delay. See
Hemstreet v. Computer Entry Sys. Corp., 972 F.2d 1290, 1294
(Fed. Cir. 1992) (nexus must be shown between the patentee's
delay in filing suit and the expenditures; the alleged infringer
must change his position "because of and as a result of the
delay."). Plaintiff also asserts that defendant fails to
establish that as a result of missing evidence, it cannot put on
a fair defense. "Conclusory statements that there are missing
witnesses, that witnesses' memories have lessened, and that there
is missing documentary evidence, is not sufficient." Myers v. Asics Corp.,
974 F.2d 1304, 1308 (Fed. Cir. 1992). Because the court denies summary
judgment on laches, it need not resolve the prejudice issue at
this stage. The court notes, however, that these questions of
disputed material fact regarding the prejudice element of the
laches defense should be addressed during the bifurcated bench
trial on laches, discussed below.
Accordingly, without the benefit of the six-year presumption
and with disputed facts about prejudice, defendant has failed to
establish the required elements of the laches affirmative
defense. See Hemstreet v. Scan Optics, Inc., 1992 WL 368059
(N.D. Ill. Dec. 3, 1992) (denying summary judgment on laches
because disputed issues regarding when the patentee knew or
should have known of the infringement).
Whether the defense of laches applies is a legal or equitable
question for the court. Town of Munster, Inc. v.
Sherwin-Williams Co., Inc., 27 F.3d 1268, 1269 (7th Cir.
1994). Defendant suggests in its motion for summary judgment that
if the court finds questions of material fact regarding laches,
it may resolve those questions in a bench trial on laches only.
Plaintiff does not respond to the suggestion, but the court
agrees that given the time and expense required to litigate a
patent infringement claim, a bench trial on laches before
proceeding to issues on infringement is in the interest of both
the parties and the court. See Aero Products Intern., Inc. v.
Intex Recreation Corp., 2004 WL 1557942, at *1 (N.D. Ill. July
9, 2004) (jury trial held in patent case, but issue of whether
defense of laches applies reserved for court's determination).
The court will address laches, including: (1) if the six-year
presumption applies; and (2) if the presumption does not apply,
whether defendant has established prejudice. CONCLUSION
For the reasons stated above, the court denies defendant's
motion for summary judgment on laches. A status hearing on this
matter is set for October 24, 2005, at 9:00 a.m. The parties are
directed to be prepared to discuss pretrial preparation for a
bifurcated bench trial on laches, and to set a trial date.
© 1992-2005 VersusLaw Inc.