The Federal Circuit Raises the Bar for Willful Infringement, Clarifies the Scope of Waiver

August 28, 2007

On August 20, 2007, the United States Court of Appeals for the Federal Circuit issued an important en banc decision in In re Seagate Technology, LLC, Misc. Docket No. 830 (Fed. Cir. Aug. 20, 2007).  Through its Seagate decision, the Federal Circuit overturned Underwater Devices Inc. v. Morrison-Knudsen Co., 717 F.2d 1380 (Fed. Cir. 1983), to modify the standard for willful infringement of a patent from negligence to recklessness. It also clarified the scope of waiver of attorney-client privilege and work-product protection by concluding that, absent unusual circumstances, waiver does not apply to trial counsel when opinions of counsel are presented in response to a willfulness charge. In view of Seagate and its recent willfulness predecessors, defendants must now, more than ever, think strategically about whether or not they will rely on an opinion of counsel defense in response to a willfulness charge.

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