The Bifurcation Divide

Law360, New York (November 18, 2009, 10:45 AM EST) -- In its landmark Seagate decision, the Federal Circuit discussed the practical concerns stemming from its willfulness doctrine, and particularly the issue of whether and when an accused infringer must decide to waive the protections of the attorney-client privilege and the work product doctrine.

A litigant accused of willful infringement is faced with a dilemma: the choice between “waiving the privilege in order to protect itself from a willfulness finding, in which case it may risk prejudicing itself on the question of liability, and maintaining the privilege,...
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