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IP Expert Commentary

5/12/2008 11:17:06 AM EST

Willful Infringement, Objective Recklessness and the Trial Attorney-Client Privilege

Posted by AME3bg

The Patent Act empowers a court to treble actual damages awarded to a patent owner for patent infringement. 35 U.S.C.S. § 284. Section 284 does not provide a standard for enhancing damages, but courts historically have linked damage enhancement, as well as the authorization to award a patent owner attorney fees in "exceptional" cases under 35 U.S.C.S. § 285, to a finding that an infringer's conduct was "willful."

In In re Seagate, 2007 U.S. App. LEXIS 19768 (Fed. Cir. August 20, 2007) (en banc), the Federal Circuit discourages patent owners from charging willful infringement. It abolishes the "affirmative duty of due care" to avoid infringing known patent rights. Also gone is any "affirmative obligation to obtain opinion of counsel." Further, it curtails any waiver of privilege when an accused infringer chooses to disclose the advice of "opinion" counsel as a defense to a charge of willfulness. The disclosure does not, except in special circumstances, waive the attorney-client privilege or work product protection for "trial" counsel. For a discussion of Seagate and its ramifications, see the commentary.

Subscribers to lexis.com can purchase the entire Expert Commentary by Donald S. Chisum.

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