In re Seagate Technology - Federal Circuit Sets New Standard

Understanding the New Patent Infringement Standard and Advice of Counsel Defense

Recording of a 90-minute premium CLE webinar with Q&A

Conducted on Tuesday, September 18, 2007

Course Materials


On August 20, 2007, a unanimous Federal Circuit Court of Appeals issued a decision overturning a 24-year precedent and establishing a new standard for determining willful patent infringement. In the same decision, the court also held that the accused infringer’s reliance on the advice of counsel defense did not require waiver of the attorney-client privilege.

The Federal Circuit's new standard for proving willful patent infringement, "objective recklessness," abolishes the long-standing "duty of due care" standard required of defendants. This increases the challenge of proving willfulness in patent infringement cases.

Listen as our panel of intellectual property specialists examines the new willfulness standard, the decision’s impact on the use of the advice-of-counsel defense and obtaining patent opinions, and the far-reaching impact on patent litigation and implications for IP owners and counsel going forward.



The panel will review these and other key questions:

  • What is the new willfulness standard and what does it mean for IP owners and counsel?
  • What will be the practical impact on a defendant’s conduct and how it combats an allegation of willfulness?
  • What steps can patent owners take to protect their patents from willful infringement?
  • What is the scope of attorney-client privilege or work product waiver if a defendant relies on an opinion of counsel?


Brian E. Ferguson
Brian E. Ferguson
McDermott Will & Emery

He is the firm-wide Deputy Head of the Intellectual Property, Media & Technology Department. He focuses on high...  |  Read More

Mark P. Wine
Mark P. Wine
Orrick Herrington & Sutcliffe

He has extensive experience in all aspects of intellectual property litigation in a broad spectrum of business and...  |  Read More

David R. Clonts
David R. Clonts
Akin Gump Strauss Hauer & Feld

He is in the Intellectual Property and Technology Practice Groups and focuses on high-technology software, electronics...  |  Read More