• Intellectual Property Commentaries: New Decision Changes Law on Attorney-Client Privilege in Patent Cases
  • October 2, 2004 | Author: Gregory A. Castanias
  • Law Firm: Jones Day - Washington Office
  • On September 13, 2004, the United States Court of Appeals for the Federal Circuit, sitting en banc, overruled almost 20 years of its own precedent and held that it was improper for a judge or jury to draw an adverse inference of "willful" infringement against a party accused of infringing a patent, where the party claims an attorney-client (or work product) privilege and withholds an opinion of counsel, or where the party has not obtained legal advice at all. The Federal Circuit's decision in Knorr-Bremse Systeme Fuer Nutzfahrzeuge GMBH v. Dana Corp. is an important one for at least two reasons: