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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.

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