Intellectual Property,
Civil Litigation
Dec. 30, 2020
Privilege waiver and good faith reliance on non-privileged information
If extended to the context of willful patent infringement, a recent ruling would suggest an implied privilege waiver in many cases involving the good faith defense even when not based on an opinion of counsel.
Richard S.J. Hung
Partner
Morrison & Foerster LLP
Email: rhung@mofo.com
Richard is co-chair of Morrison & Foerster's IP Litigation Practice and cross-disciplinary Intellectual Property Group. Mr. Hung is an IP trial lawyer, representing clients in high-stakes and complex patent litigation proceedings before U.S. district courts, the Federal Circuit, and the U.S. Patent and Trademark Office.
An accused infringer may rebut a finding of willful patent infringement by asserting a good faith belief of non-infringement. In re Seagate Tech., LLC, 497 F.3d 1360, 1369 (Fed. Cir. 2007) (overruled on test of good faith belief). One way to establish that good faith belief is by showing reliance on an opinion of counsel. Although the good faith defense needs not rely on an opinion of counsel, there has been scant case law on implied privil...
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