Knorr-Bremse: Death of an Inference

In its long awaited decision, a virtually unanimous en banc panel of judges of the U.S. Court of Appeals for the Federal Circuit overturned 18 years of precedent, revoking the so-called "adverse inference" rule explaining it had resulted in inappropriate burdens on the attorney-client relationship. Knorr-Bremse Systems Fuer Nutzfahrzeuge GmbH v. Dana Corp., Case Nos. 01-1357, -1376, 02-1221, - 156 (Fed. Cir. Sept. 13, 2004).

Evidence of actual copying is rarely available. As a result, courts have focused on whether an accused infringer had a good-faith belief its conduct was proper. Over time, the Federal Circuit imposed an affirmative duty on a potential infringer to act with due care, which included obtaining a competent opinion of counsel. Underwater Devices, Inc. v. Morrison-Knudsen Co., 717 F.2d 1380, 1389-90 (Fed. Cir. 1983). The due care and competent opinion of counsel requirement led the Federal Circuit to find a failure to obtain opinion of counsel could warrant an adverse