X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The u.s. court of appeals for the Federal Circuit granted the patent bar’s wish on September 13 when it overturned 20 years of precedent in Knorr-Bremse Systeme Fuer Nutzfahrzeuge Gmbh v. Dana Corporation. For years many lawyers complained that attorney-client privilege was being eroded when courts forced companies accused of patent infringement to disclose opinions they had obtained from counsel about possible infringement. Introducing such an opinion into evidence triggers a waiver of attorney-client privilege. But, under the old precedent, if the defendant decided to withhold the opinion, the court could infer that the company had either not bothered to get a legal opinion on the matter or that the opinion was not exculpatory. In its recent decision, the Federal Circuit held that courts should not presume that a company infringed a patent when it fails to obtain such an opinion or does not disclose it. Will the new ruling mean less work for opinion-writing practices? “If there’s a clear case of no infringement, or invalidity of the patent, then companies may decide not to seek an opinion,” says Linda Alcorn of Sterne, Kessler, Goldstein & Fox. But others take the opposite view. Michael Dzwonczyk of Sughrue Mion says the decision may “stimulate opinions because [clients] can now solicit advice of their counsel without worrying that they will have to disclose it” and thereby jeopardize privilege. A version of this story originally appeared in Legal Times, a sibling publication of Corporate Counsel.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.