In A.C. Aukerman Co. v. R.L. Chaides Const. Co. (Fed.Cir. 1992) 960 F.2d 1020, the court rejected the plaintiff's contention that some of defendant's alleged acts of patent infringement were not barred by laches because they occurred within the applicable limitations period.
The court explained:
"Plaintiff asserts that it is improper to utilize laches as a defense to completely bar recovery of prefiling damages flowing from a continuing tort, such as patent infringement. We understand plaintiff to be arguing that, because each act of infringement is deemed a separate claim, the laches defense, like a statute of limitations, must be established separately with respect to each such act. Plaintiff's theory conflicts with the precedent of the Supreme Court in which laches has been applied against continuing torts ... . In those cases, as well as in our precedent and that of other circuits, laches has been viewed as a single defense to a continuing tort up to the time of suit, not a series of individual defenses which must be proved as to each act of infringement, at least with respect to infringing acts of the same nature. To that extent, continuing tortious acts may be deemed to constitute a unitary claim." (Id. at p. 1031.)