N ALMOST EVERY patent infringement case, the patent owner alleges that the defendant has not only infringed its patent, but has done so “willfully,” or with wanton disregard of the patentee’s rights. A finding of willful infringement can result in a trebling of the patent owner’s compensatory damages and an award of attorney fees. The most common defense to a charge of willful infringement is that the accused infringer acted in good faith reliance on the competent opinion of patent counsel.
Seeking the advice of patent counsel is fundamental to the decision of whether to introduce a product or service into the market. Patent counsel is typically asked to advise on whether the client can proceed without infringing the valid patent of another. Often, patent counsel is charged with memorializing the advice in a written opinion on which the client can rely if accused of willful infringement. Complicating matters is that the attorney-client privilege may have to be waived and the opinion disclosed in order to establish good faith reliance on the advice should the client be charged with willful infringement in a litigation.
