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Lawyers Stump for End to Tough Patent Policy

By Brenda Sandburg
December 01, 2003

Patent lawyers have long chafed under rules that require them to relinquish attorney-client privilege in certain patent cases.

But that may change soon. The U.S. Court of Appeals for the Federal Circuit recently announced it was reviewing its past opinions on the issue and has asked for public comment. Lawyers on Nov. 3 flooded the court with amicus briefs pleading for repeal of the rules.

At issue are two Federal Circuit rulings that created a process to assess whether someone knowingly infringed a valid patent. Willful infringement can result in a trebling of damages in a patent dispute. In a 1983 opinion, Underwater Devices Inc. v. Morrison-Knudsen Co., 717 F2d 1380, the court said a party must seek legal advice before engaging in activity that might infringe someone else's patent.

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