Doing Away with "Duty of Care" - The State of Willful Patent Infringement after Seagate

September 12, 2007

The Federal Circuit's In re Seagate decision eliminated the 24-year old "duty of care" standard for proving willful infringement in patent cases, suggesting that the state of mind of the infringer may no longer be a primary factor in such matters. But the decision also acknowledges that clarification of the new standard must await development in future cases. What is the new standard and, bottom line, will it make willful infringement easier or more difficult to prove?

This teleconference will:

  • Discuss the Federal Circuit's new standard, "objective recklessness," and demonstrate instances when the objective standard favors the infringer and other cases when the patentee may benefit;
  • Explore how the new standard will effect patent litigation strategies and tactics, as well as relative bargaining positions of parties in settlement and licensing negotiations;
  • Analyze how opinions of counsel can affect the application of the new standard, and offer ways to write these opinions for maximum effect; and
  • Address the scope of the waiver of attorney-client privilege and work product when potential infringers rely on opinions of counsel.