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The Six-Year Clock for the Presumption of Laches Keeps Ticking Past the Issuance of a Reexamination Certificate

Client Alert | 1 min read | 07.18.08

In Serdarevic v. Advanced Medical Optics, Inc. (No. 08-1075, July 16, 2008), the Federal Circuit affirms a summary judgment that a claim of inventorship is barred by laches where the plaintiff filed suit less than six years after the issuance of a reexamination certificate but more than six years from the original grant of the patent.

According to the Federal Circuit, the issuance of a reexamination certificate does not automatically reset the six-year clock for the presumption of laches. The mere possibility that the claims of a patent may be amended to affect an inventorship claim does not excuse a delay in bringing suit. Because the plaintiff asserted her claim nearly eight years after learning of the issuance of the six patents in suit, even though one had undergone reexamination, the Court concludes that the district court properly applied the presumption of laches.

The Federal Circuit agrees that, in the absence of evidence that the delay was reasonable or excusable or that the defendants did not suffer material prejudice due to the delay, the plaintiff failed to rebut the presumption of laches. Unfamiliarity with the U.S. patent system, an inability to obtain willing legal counsel, and efforts to license one's inventorship rights do not suffice to rebut the presumption that the delay was unreasonable or inexcusable. As to material prejudice, although the plaintiff was willing to forego reliance on three deceased witnesses who had knowledge of the inventorship claim, such willingness did not reverse the prejudice suffered by the defendants in their ability to present a full and fair defense on the merits.

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Client Alert | 5 min read | 12.12.25

Eleventh Circuit Hears Argument on False Claims Act Qui Tam Constitutionality

On the morning of December 12, 2025, the Eleventh Circuit heard argument in United States ex rel. Zafirov v. Florida Medical Associates, LLC, et al., No. 24-13581 (11th Cir. 2025). This case concerns the constitutionality of the False Claims Act (FCA) qui tam provisions and a groundbreaking September 2024 opinion in which the United States District Court for the Middle District of Florida held that the FCA’s qui tam provisions were unconstitutional under Article II. See United States ex rel. Zafirov v. Fla. Med. Assocs., LLC, 751 F. Supp. 3d 1293 (M.D. Fla. 2024). That decision, penned by District Judge Kathryn Kimball Mizelle, was the first success story for a legal theory that has been gaining steam ever since Justices Thomas, Barrett, and Kavanaugh indicated they would be willing to consider arguments about the constitutionality of the qui tam provisions in U.S. ex rel. Polansky v. Exec. Health Res., 599 U.S. 419 (2023). In her opinion, Judge Mizelle held (1) qui tam relators are officers of the U.S. who must be appointed under the Appointments Clause; and (2) historical practice treating qui tam and similar relators as less than “officers” for constitutional purposes was not enough to save the qui tam provisions from the fundamental Article II infirmity the court identified. That ruling was appealed and, after full briefing, including by the government and a bevy of amici, the litigants stepped up to the plate this morning for oral argument....

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