abandonment not as a defense to a counterclaim of infringement— as defendant has brought no such claim— but instead as a means to negate the prejudice element of defendant’s laches defense. Wozniak Travel contends as a preliminary matter that Tolkien Enterprises may not raise an abandonment argument on motion for summary judgment because abandonment was not pled as an affirmative defense. However, because Tolkien Enterprises uses abandonment not as an affirmative defense, but to negate an element of the laches defense, affirmative pleading is not required, and the court will consider Tolkien’s argument on the merits. The court finds no cases applying naked licensing to bar a party from defending an infringement claim on the basis of laches, 1013 (N.D.Cal. Aug.10, 2004) (Patel, J.) (<HOLDING>). In First Interstate, abandonment through
holding in a patent infringement case that plaintiff lacked standing where it held a conditional right to license a patent and enforce license agreements but did not have the right to transfer the patent holding that claimant may not pursue infringement claim after issuing naked license holding grant of naked license to be a fraud on the public and unlawful holding that the government could not be precluded from raising the express license in the instant infringement suit on the basis of the commissioners earlier decision because the commissioner did not have authority under executive order 10096 to consider the express license holding that contributory trademark infringement requires some predicate act of infringement