The law surrounding an accused patent infringer’s defense to willful infringement and the impact of potential waiver of attorney-client privilege and work-product immunity continues to evolve.
Knorr-Bremse Systeme Fuer Nutzfahrzuege GmbH v. Dana Corp. held that a failure to rely on an opinion of counsel would no longer lead to an adverse inference that the opinion was negative. However, that decision left in place the affirmative duty to act with due care when confronted with a patent that could impact a potentially infringing product or process.
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