OR THOSE of us who try patent infringement cases in the district court for the District of Delaware, and those in-house attorneys who supervise that litigation, the world has become a more interesting place. The landscape is changing, and it has nothing to do with the departure of a well-respected jurist in that district. The court’s recent decision in Novartis Pharmaceuticals Corp. v. Eon Labs Manufacturing, Inc., 206 F.R.D. 396 (D.Del. 2002) has taken the scope of the waiver of the attorney work product privilege in patent cases in a new direction.
The facts in the Novartis case are not unique; in fact, they are typical. Patent-holder Novartis sues Eon Labs for patent infringement alleging, among other things, that the infringement was willful. Eon Labs defends the willfulness charge by asserting the advice of counsel defense and proffering a written non-infringement opinion from an attorney obtained prior to the commencement of the litigation. Litigation counsel for Eon Labs even produce communications between the opinion counsel (which unfortunately for Eon Labs is also its litigation counsel) and Eon. So far, nothing extraordinary; but now, the wrinkle.
