It has long been held that a good faith reliance on timely and competent advice of counsel can negate a charge of willful patent infringement. Such advice of counsel can be used to potentially shield an infringer from having to pay enhanced damages of up to three times the damages under 35 U.S.C. §284 and/or the patentee's attorneys' fees under 35 U.S.C. §285. Similarly, a defendant's failure to obtain advice of counsel until after the company commenced its infringing activities would be evidence of willful infringement. Underwater Devices Incorporated v. Morrison-Knudsen Company, 717 F.2d 1380, 1390 (Fed. Cir. 1983). The practical application of this rule has been fraught with difficulty, however, since assertion of an opinion of counsel as a defense to a charge of willfulness typically involves a waiver of attorney-client privilege as to communications surrounding the opinion. The tension created by this dynamic was exacerbated by an adverse inference that an opinion of counsel was unfavorable if an accused infringer refused to waive privilege and disclose an opinion of counsel in defense of a willfulness charge. Kloster Speedsteel AB v. Crucible, Inc., 793 F.2d 1565, 1580 (Fed. Cir. 1986). The Court of Appeals for the Federal Circuit in Knorr-Bremse Systeme Fuer Nutzfahrzeuge GMBH v. Dana Corp., 2004 U.S. App. LEXIS 19185 (Fed. Cir. 2004) (en banc) abolished the adverse inference rule, but also reaffirmed that one is under a duty of care to avoid infringement.
- November 09, 2004Stephen C. Durant and Gene H. Yee
A welcome to the Special Issue on Internet jurisdiction from the Managing Editor.
November 09, 2004ALM Staff | Law Journal Newsletters |Highlights of the latest franchising cases from around the country.
November 08, 2004Susan H. Morton and David W. OppenheimCalifornia has a major influence on many business trends in the United States, and franchising law is no exception. Two recent court decisions in the state could have a significant effect on how franchises classify their employees for overtime purposes. Additionally, a citizen referendum that is on the November ballot could change how franchises (and all private businesses) are exposed to lawsuits. In this Q&A, Matthew Righetti, a partner in Righetti Wynne, based in San Francisco, talks about the potential impact of these developments in the context of the general business environment in the state. Righetti represented the plaintiffs in Sav-On Drugstores v. Superior Court, which is discussed below.
November 08, 2004ALM Staff | Law Journal Newsletters |Highlights of the latest franchising news from around the country.
November 08, 2004ALM Staff | Law Journal Newsletters |It was a dark and stormy Seattle day 7 years ago. The Federal Trade Commission (FTC) was in town for its workshop on the proposed revisions to the Franchise Rule (the NPR) on Nov. 6-7, 1997, to discuss whether it should allow franchisors to disclose electronically. Many people testified positively, including yours truly, and the discussion quickly turned to how to do so: floppy disks (but there were so many formats incompatible with the PCs and printers of the day), or the Internet (but there were so few prospects that had access). How much has changed!
November 08, 2004Gary R. DuvallIt is becoming almost impossible to stay on top of all the significant developments affecting mass torts, class actions and environmental injury cases. Every week the combination of multiple court decisions, settlements, verdicts and government action affect the complexion of this constantly changing practice. The following summary, synthesized from multiple sources that include published court decisions, newspapers, government publications, journals and reports from lawyers across the country, highlights some of the most important events affecting mass torts during the last 6 months.
November 08, 2004Chris PlacitellaOne year ago, newspaper headlines in publications such as The Wall Street Journal and The New York Times sounded the alarm that litigation involving injury or disease attributed to silica could be the "Next Asbestos." (Jonathan D. Glater, Suits on Silica Being Compared to Asbestos Cases, N.Y. Times, Sept. 6, 2003 at C1; Susan Warren, Silicosis Suits Rise Like Dust, Wall St. J., Sept. 4, 2003.) Since then, many legal and insurance industry commentators have tracked the growing number of silica claims. At the same time, the business and investment communities have taken a closer look to determine whether silica liabilities will present financial risk profiles similar to that experienced in the asbestos mass tort arena.
November 08, 2004Chris Michael TempleForecasting mass tort claims is often based on sophisticated models applied to large, complicated databases. These models can account for such causal factors as the size of the exposed population, the dose-response rates between defendant's product and disease, and actuarial mortality rates of the exposed population. Too often, though, there is one variable that is simply extrapolated into the future at historical levels with no attempt to understand its causal influences — the filing rate (also called the propensity to sue).
November 08, 2004Frederick C. Dunbar and Faten SabryHighlights of the latest insurance cases from around the country.
November 05, 2004ALM Staff | Law Journal Newsletters |