The Court is slowly developing an irreconcilably inconsistent body of law on the issue of waiver of affirmative defenses. In some cases the court finds a waiver based on the passing of a certain amount of time. In other cases, it finds no waiver for similar or longer amounts of time. Efforts to distinguish the different cases are un-persuasive. It appears that what the Court is really doing is basing its waiver decisions on subjective feelings about who should win the case. I’m not saying that is what the Court is actually doing. But that is how it’s starting to look—and that’s a problem.