The Intellectual Property Committee of ACC filed an amicus curiae brief supporting a petition for rehearing en banc to the United States Court of Appeals for the Federal Circuit in Broadcom Corp. v. Qualcomm Inc., No. 2008-1199. In Broadcom, the panel affirmed that in the “induce to infringe” context, a jury can use “failures to procure [attorney] advice as circumstantial evidence of intent to infringe”. The ACC argues, to the question of whether evidence of absence of an opinion of counsel should be admissible in patent litigation, that a jury instruction to consider such absence of opinion “attach[es] an adverse inference that cautionary instructions cannot cure”, further eroding attorney client privilege in the corporate context.
The Broadcom decision diverges from the principles against adverse inferences set out in Knorr-Bremse v. Dana Corp., 383 F.3d 1337 (Fed. Cir. 2004) (en banc) (see ACC’s amicus brief in Knorr-Bremse below), with respect to the use of privileged information required to refute a charge of intent to infringe a patent. In the Broadcom brief, ACC asks the Court to “eliminate any reference to the absence of an opinion as a factor in determining willfulness or inducement.”
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