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A Reasonable, Balanced Answer to In Re Seagate Tech.

By Michael J. Bonella of Woodcock Washburn LLP

Michael J. Bonella, a partner in the Philadelphia office of Woodcock Washburn LLP, focuses his practice on complex patent litigation. He can be reached at

In January 2007, the Federal Circuit decided sua sponte to request briefing from the parties in In Re Seagate Tech., LLC 1 on three questions regarding willful infringement:

(1) Should a party’s assertion of the advice-of-counsel defense to willful infringement extend waiver of the attorney-client privilege to communications with that party’s trial counsel? 2

(2) What is the effect of any such waiver on work-product immunity?

(3) Given the impact of the statutory duty of care standard announced in Underwater Devices, Inc. v. Morrison-Knudsen Co., 3 on the issue of waiver of attorney-client privilege, should this court reconsider the decision in Underwater Devices and the duty of care standard itself?

The answer to the first two questions could have profound implications on patent litigation strategy, and the answer to the third coul...

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