• In re Seagate Technology, LLC: Federal Circuit Narrows Willfulness, Limits Waiver and Abandons the Duty of Care
  • October 1, 2007 | Authors: Lawrence Rosenthal; Charles E. Cantine
  • Law Firm: Stroock & Stroock & Lavan LLP - New York Office
  • In an en banc decision (In re Seagate Technology, LLC), the Federal Circuit overruled a 1983 case, Underwater Devices, Inc. v. Morrison-Knudsen Co., creating a new and more difficult test for establishing willful infringement, which, if found, can lead to an award of enhanced (up to three times) damages and attorney fees. The Court also held that absent extraordinary circumstances, a party relying on the advice of counsel defense does not waive the attorney client or work product privilege with respect to communications with trial counsel. Finally, the Court abandoned the duty of care standard for assessing willfulness and reaffirmed that there is no affirmative obligation to obtain an opinion of counsel.