For 24 years, the most effective way to defend against a charge of willful infringement has been to rely on the 'advice-of-counsel' defense; i.e., to assert that you consulted with, and relied upon, a competent opinion of counsel finding that there was no infringement of any valid claim of the patent at issue.
<i>In Re Seagate, LLC</i>
Tension concerning the duty-of-care standard has continually mounted as courts have wrestled with the scope of the waiver of the attorney-client and work-product privileges when litigants asserted an advice-of-counsel defense. More recently, several district courts extended the waiver to trial counsel, further presenting considerable obstacles when defending a claim of willful infringement. It is in this environment that the Federal Circuit decided, sua sponte, that it should reconsider the duty-of-care standard and the waiver issues associated with the advice-of-counsel defense.
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Stacy L. PrallThis premium content is locked for LawJournalNewsletters subscribers only
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