Knorr-Bremse Decision Eliminates Adverse Inference Rule
09/14/2004In its long-awaited en banc decision, the U.S. Court of Appeals for the Federal Circuit yesterday overturned 18 years of precedent, revoking the so-called "adverse inference" rule. Knorr-Bremse Systems Fuer Nutzfahrzeuge GmbH v. Dana Corp., Case Nos. 01-1357, -1376, 02-1221, - 156 (Fed. Cir. Sept. 13, 2004).
The first of the questions posed for en banc review was: When the attorney-client privilege and/or work-product privilege is invoked by a defendant in an infringement suit, is it appropriate for the trier of fact to draw an adverse inference with respect to willful infringement?
To this question the Court answered "no." It continued, "although the duty to respect the law is undiminished, no adverse inference shall arise from invocation of the attorney-client and/or work product privilege."
The second question posed for en banc review was: When the defendant had not obtained legal advice, is it appropriate to draw an adverse inference with respect to willful infringement?
Again the Court answered "no." It explained, "the issue here is not of privilege, but whether there is a legal duty upon a potential infringer to consult with counsel, such that failure to do so will provide an inference or evidentiary presumption that such opinion would have been negative . . . ." "Although there continues to be 'an affirmative duty of due care to avoid infringement of the known patent rights of others,' '(embedded citation omitted), the failure to obtain an exculpatory opinion of counsel shall no longer provide an adverse inference or evidentiary presumption that such an opinion would have been unfavorable.' "
For the full case listing please see Knorr-Bremse Systeme Fuer Nutzfahrzeuge GMBH v. Dana Corporation, et al.
