Federal Circuit Clarifies Scope of Waiver Arising from "Advice-of-Counsel" Defense to Willful Patent Infringement

May 15, 2006

On May 1, 2006, the United States Court of Appeals for the Federal Circuit issued a writ of mandamus that represents a major clarification of the law for patent litigants.  The Federal Circuit clarified the degree to which attorney-client privilege and attorney work-product immunity are waived when defendants respond to claims of willful patent infringement by relying on an “advice-of counsel” defense.  The case, In re EchoStar Communications, is significant because the Federal Circuit explicitly held that a waiver does not extend to attorney work product that is not communicated to the client or that does not reflect communications with the client. 

If you would like additional details regarding this case, please contact Matthew Vlissides at (202) 408-5376, or by e-mail at mvlissides@sonnenschein.com.

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