The Federal Circuit Raises The Standard For Willful Infringement And Enhanced Damages

Ali Dhanani writes in the February 2008 Intellectual Property Report (Volume 5, Issue 73) from Baker Botts L.L.P., an article entitled, "In The Wake Of In re Seagate Technology, LLC: The Federal Circuit Raises The Standard For Willful Infringement And Enhanced Damages And Heightens The Protection Of Attorney-Client And Work Product Privilege."

On August 20, 2007, the Federal Circuit arguably took significant arrows from the quiver of patent owners in litigation and simultaneously provided a considerable new shield to alleged infringers with its ruling in In re Seagate Technology, LLC.[1] In a unanimous en banc decision, the Federal Circuit increased the standard of proof necessary to establish willful infringement, eliminated its previous willfulness standard based upon an affirmative duty of due care, and determined that the waiver of attorney-client privilege and attorney work product protection created by the assertion of an opinion of counsel defense does not extend to trial counsel. These questions in the Seagate case were previously discussed in an article in our January 2007 IP Report entitled Federal Circuit To Consider Extent Of Waiver Of Attorney-Client Privilege For Reliance On An Opinion Of Counsel In In re Seagate. As noted in that article, the standard for willful infringement matters a great deal because a finding of willful infringement can serve as a predicate for an award of enhanced damages and attorneys’ fees to the prevailing patentee.

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