Quote of the Day - He who builds a better mousetrap these days runs into material shortages, patent-infringement suits, work stoppages, collusive bidding, discount discrimination--and taxes.
The Federal Circuit took a swipe at patent law and changed one point of law and clarified another in the case of In Re Seagate Technology, LLC.
Back in 1983 in another patent case, the Federal Circuit established a test for willfulness (a finding that can double damage awards) that to the court sitting now sounded "akin to negligence."
Setting the bar higher, the federal court held: "[T]o establish willful infringement, a patentee must show by clear and convincing evidence that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent. . . . The state of mind of the accused infringer is not relevant to this objective inquiry. If this threshold objective standard is satisfied, the patentee must also demonstrate that this objectively-defined risk (determined by the record developed in the infringement proceeding) was either known or so obvious that it should have been known to the accused infringer."
The pendulum swings further away from easy damage awards.
The Court also caused all patent litigation counsel, including this one, to let out a huge sigh of relief. The court ruled the attorney work-product privilege of litigation counsel cannot be examined by plaintiff's counsel when the client asserts the "advice of counsel" defense to avoid a charge of willfulness. The Tivo v. Echostar standard of allowing access to the attorney work-product of opinion counsel still stands. It's fair game to examine the backup for opinion counsel.
Just don't mix the two up. Keep the attorney who provides the opinion that the alleged patent infringement wasn't willful separate from the attorney who will defend the patent infringement case.