According to a recent decision from the U.S. Court of Appeals for the Federal Circuit, an alleged patent infringer’s invocation of an advice of counsel defense generally will not constitute a waiver of the attorney-client privilege concerning the defendant’s communications with trial counsel. See In re Seagate Technology, LLC, 497 F.3d. 1360, 2007 WL 2358677 (Fed. Cir. August 20, 2007).

In Seagate, Convolve Inc. accused Seagate Technology of patent infringement. In order to rebut Convolve’s claim of “willful infringement” and pursuit of enhanced damages, Seagate invoked an advice of counsel defense with respect to opinions that Seagate had received from opinion counsel that it had retained. Seagate disclosed to Convolve the opinion letters and work product of the opinion counsel, and made him available for a deposition.

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