Delaware Patent Litigation Report : Delaware Intellectual Property Lawyer & Attorney : Morris James Law Firm : Delaware Patent Litigation Report

The court is unpersuaded by Defendant’s laches arguments, noting defendant never undertook any investigation of the circumstances associated with plaintiff’s alleged infringing activities.  A reasonable patentee would have suspected Crown’s potentially infringing activities.  Thus court finds that Rexam has failed to raise a genuine issue regarding the fact that it should have known of Crown’s alleged infringing activities.  Further, because defendant delayed more than six years before filing its counterclaim, this court presumes that the delay was both unreasonable and prejudicial.  Rexam did not meet its burden of production and come forward with evidence sufficient to raise a genuine factual issue as to whether economic prejudice exists. Its evidentiary showing is thus insufficient to overcome the presumption of evidentiary prejudice.  The evidence also fails to raise a genuine issue of material fact as to Crown’s alleged particularly egregious willful infringement because (1) “there is no affirmative obligation to obtain opinion of counsel in order to avoid liability for willful infringement”85 and (2) there is no affirmative duty of care on potential infringers to determine whether their conduct is infringing, even if they have notice of another party's patent rights.