It’s a privilege (or immunity)
As I noted the other day at Madisonian, the Federal Circuit has issued an important decision in the area of willful infringement. The decision, before the court on mandamus, is In re Echostar. The key question in the matter is the scope of the waiver created by Echostar’s reliance on legal advice as a way to dispel the notion that its infringement was willful. Resolving a longstanding split in the district courts, the Federal Circuit holds that (a) the question is a matter of Federal Circuit (not regional circuit) law, and (b) the waiver does not extend to materials that the advising lawyer did not communicate to the client. Instead, these uncommunicated materials remain behind the protective cloak of the work product doctrine.
[...] I’ve already posted briefly on Echostar, the Federal Circuit’s May 1 order granting a mandamus petition that sought to narrow a trial court’s decision about the scope of a privilege waiver. Patently O also discusses the case, as does Patent Prospector. Giving the case another close read, which a friendly comment prompted me to do, shows me there’s more about which to comment. If you’re interested in willfulness doctrine and the advice of counsel defense, you can read more about it below the fold. [...]
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