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In re EchoStar Communications: Implications for Opinion Practice in Patent Cases

By Frank L. Bernstein
June 29, 2006

The Court of Appeals for the Federal Circuit finally has opined on the scope of waiver of privilege in patent infringement litigation when an accused infringer relies on an attorney opinion to defend against a charge of willful infringement. In re EchoStar Commc'ns Corp., 2006 U.S. App. LEXIS 11162 (Fed. Cir., May 1, 2006).

Opinions, Willful Infringement, and Attorney-Client Privilege

Patent owners accuse infringers of willful infringement because, if willfulness can be proved, the infringement case may be deemed 'exceptional' and the court may increase a damages award (by a factor of up to three) and also may grant attorneys' fees to the patent owner. 35 U.S.C. '285. Analyzing willful infringement necessarily implies that there is infringement.

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