Last month, the United States Court of Appeals for the Federal Circuit held oral argument in Hyatt v. Stewart, which should be on everyone’s radar. Squarely presented in this case is the question of whether prosecution laches is a legitimate doctrine that can render any patent unenforceable if it takes longer than six years to obtain the patent from the United States Patent and Trademark Office (USPTO). As crazy as it sounds, and to the surprise of many patent practitioners who have not paid careful attention to the development of Federal Circuit case law, in 2021 in Hyatt v. Hirshfeld the Federal Circuit ruled—rather improvidently—that a patent is presumed unenforceable if prosecution took longer than six years.

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