June 2009

By Bruce Barker and Frederick Hadidi

Recent decisions have begun to fill in the gaps left by In re Seagate Technology, LLC. They suggest that a competent opinion is still an effective defense to a willfulness charge, and that a jury may consider a defendant’s failure to obtain an opinion when determining the defendant’s intent for purposes of willfulness and inducement. Also, legitimate trial defenses may be sufficient to establish that a defendant’s actions at the time of infringement were not "objectively reckless."

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