Yesterday the Federal Circuit issued a decision that will affect almost every company accused of patent infringement, as well as the trial lawyers and opinion counsel who represent them. In a much-anticipated en banc decision,[1] the court overruled its standard for proving willful patent

infringement, raising the bar by requiring clear and convincing evidence of “objective recklessness”

on the part of the accused infringer, rather than a mere failure to exercise “due care” to avoid patent

infringement. The court also held that if a defendant elects to rely on an opinion of counsel, the resulting waiver does not generally include attorney-client communications with trial counsel or the

work product of trial counsel.

This decision will have a significant impact on willfulness in patent cases. By abolishing the duty of due care, the Federal Circuit likely made it more difficult for patentees to show willfulness. The incentive for accused infringers to waive the attorney-client privilege by producing an opinion of counsel is now greatly reduced, which will mean less collateral litigation regarding waiver in

willfulness cases. Indeed, under the new standard companies are likely to refrain from obtaining opinions in the first place in many more circumstances. Finally, if a defendant elects to waive the privilege, it can do so knowing that communications with trial counsel, and trial counsel’s work

product, are not a part of that waiver.