Recent Federal Circuit Patent Decisions

In a break from precedent, the Federal Circuit overruled existing case law regarding the relationship between the attorney–client privilege, opinion letters and findings of willful infringement.

Historically, upon a finding of infringement, a court would analyze the totality of the circumstances and increase damages up to three times the amount assessed as an additional, punitive damage if the infringement was "willful." Precedent dictated that, upon actual notice of another’s patent rights, a potential infringer had an affirmative duty to obtain legal advice from an attorney before proceeding. If no opinion letter was produced at trial or if no opinion letter was sought by the infringer, the case law encouraged the court to adversely infer that the infringer’s actions were willful.