The Federal Circuit dropped a bomb today with this unanimous decision. Here’s the quick and dirty:
1) To prove willfulness, patentees now must show “objective recklessness. The Federal Circuit abandoned any affirmative duty of care on alleged infringers in relation to willfulness.
2) Waiver of the attorney-client privilege when asserting an opinion of counsel as a defense to a charge of willfulness does not, as a general rule, extend to trial counsel – although courts continue to have discretion as to waiver.
3) Waiver of work product immunity associated with the assertion of an opinion of counsel does not extend to trial counsel, unless there are exceptional circumstances.
Here in Delaware, this decision should bring uniformity to the waiver issues as to trial counsel, an issue that had received differing treatment in the past. We will keep and eye out for decisions applying this precedent in the coming months.