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Senniger, Powers, Leavitt & Roedel's, P.C.

A Sea Change in Willful Infringement
The Federal Circuit's In Re Seagate Decision Raises the Bar for Patentees Seeking Enhanced Damages.

For decades, willful infringement was determined under the duty of due care standard set forth in Underwater Devices Inc. v. Morrison-Knudsen Co., 717 F.2d 1380 (Fed. Cir. 1983). In Judge Dyk's 2004 dissenting opinion in Knorr-Bremse, he described the duty of due care "a relic of the past," and called for its elimination. Since then, significant patent reform activity has occurred on Capital Hill, including efforts to raise the standard for willful infringement. On August 20, 2007, the Federal Circuit beat Congress to the punch with its en banc In Re Seagate opinion. The Federal Circuit limited the availability of enhanced damages to patentees by eliminating the duty of due care and announcing a higher standard for determining willful infringement. Patentees must now satisfy a two-pronged standard to establish the requisite willful infringement needed for enhanced damages under 35 U.S.C. § 284:

(1) First, a patentee must show by clear and convincing evidence that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent.

(2) Second, if the threshold objective standard is satisfied, the patentee must also demonstrate that this objectively defined risk was either known or so obvious that it should have been known to the accused infringer.

This important case sprang from a routine discovery dispute centered on whether Seagate waived its attorney client privilege with respect to communications with its trial counsel or waived the protections afforded its trial counsel's work product. In the underlying case, Convolve, Inc. v. Compaq Computer Corp. and Seagate Technology, Inc., Seagate elected to rely on the advice of counsel to defend against Convolve's willful infringement allegation. After the complaint was filed, Seagate retained separate counsel to provide an opinion concerning Convolve's patents. Seagate conceded that, by relying on the advice of counsel defense, it had waived the attorney client privilege and work product protections with respect to its opinion counsel. Seagate, however, refused to produce any communications with its separate trial counsel or its trial counsel's work product relating to the same subject matter. The United States District Court for the Southern District of New York granted patentee Convolve's motion to compel the attorney client communications between Seagate and its trial counsel, as well as its trial counsel's work product that was communicated to Seagate. Seagate filed a petition for a writ of mandamus with the Federal Circuit. Seizing on the opportunity to address the questions left unanswered by its previous Knorr-Bremse and In re Echostar opinions, the Federal Circuit ordered en banc review and invited briefing from the parties and amici curiae on three questions:

(1) Should a party's assertion of the advice of counsel defense to willful infringement extend waiver of the attorney-client privilege to communications with that party's trial counsel?

(2) What is the effect of any such waiver on work product immunity?

(3) Given the impact of the statutory duty of care announced in Underwater Devices, Inc. v. Morrison-Knudson Co., 717 F.2d 1380 (Fed. Cir. 1983), on the issue of waiver of attorney-client privilege, should this court reconsider the decision in Underwater Devices and the duty of care standard itself?

Making quick work of the first two questions-those left unanswered by its Echostar opinion-the Federal Circuit held that asserting the advice of counsel defense and relying on opinion counsel's work product will generally not constitute waiver of the attorney-client privilege or work product protection with respect to trial counsel. Warning that it was not setting forth an "absolute rule," the Court noted that waiver could extend to trial counsel in unique circumstances, such as if a party or counsel engages in chicanery.

The Federal Circuit's answer to the third question, discussed above, overshadowed the waiver issues resolved by the Court. The ripples of uncertainty resulting from the elimination of the duty of due care and the new "objective recklessness" standard remain to be resolved. For example, in Knorr, the en banc Federal Circuit held that the existence of a substantial defense to infringement is not necessarily sufficient to defeat liability for willful infringement. The Seagate court, however, held that a substantial question about invalidity or infringement sufficient to defeat a preliminary injunction motion would be sufficient to defeat a willfulness charge under the new objective recklessness standard. Another unresolved issue is the continued viability of the totality of the circumstances analysis, including the Read factors, which previously informed the willfulness analysis. But one thing is certain: In re Seagate has raised the bar for patentees seeking enhanced damages under 35 U.S.C. § 284.

08-30-2007

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Phillips Lytle, L.L.P.

Phillips Lytle Partner Raymond L. Ruff Appointed to Firm’s Governing Committee
Raymond L. Ruff, a partner with Phillips Lytle LLP, one of the region’s largest full service law firms, has been appointed to the firm’s Governing Committee. The Governing Committee, comprised of the Firm’s Managing Partner and seven elected members, is responsible for the overall management of the firm including all professional, policy, management and compensation matters.

At Phillips Lytle, Mr. Ruff concentrates his practice in the areas of commercial transactions, commercial workouts and real estate. A member of the New York State and Monroe County Bar Associations, he holds a J.D. from Albany Law School of Union University and a B.A., cum laude, from Hartwick College. Mr. Ruff was the recipient of the Rochester Business Journal’s “40 Under 40” Award in 2000.

08-30-2007

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Henderson, Franklin, Starnes & Holt Professional Association

Henderson Franklin and Oswald Trippe sponsor "Life x 3" at Gulfshore Playhouse
Gulfshore Playhouse is proud to announce a season of two critically acclaimed plays: “Life x 3” by Yasmina Reza, author of the Tony Award-winning hit comedy “Art,” and the Florida premiere of a new musical comedy, which may be Broadway bound, “Married Alive!” Both plays will be offered in Lee and Collier County. "Life x 3” will be performed October 4-13 at the Alliance for the Arts in Fort Myers as part of the first “Season of the Foulds,” and October 18-27 at The Norris Center in Naples. “The choice of plays and performers reflects our unwavering commitment to offer southwest Florida exciting new and/or rarely seen plays performed by some of the best professional actors in America, as well as to create a much-needed platform for new playwrights and composers,” states Founder and Producing Artistic Director, Kristen Coury.

“Life x 3” was initially presented in Europe before its critically acclaimed United States’ debut on Broadway starring Helen Hunt and John Turturro in 2003. At first blush, the story seems simple. But is it? Henry and Sonia are spending a quiet evening at home. Sonia is preparing her reports. Henry is trying to deal with their sleepless six-year-old son. But Henry is about to have a bigger problem. He is on the verge of publishing two years of scientific research and is desperate to make a good impression on the distinguished senior scientist, Hubert Finidori. So when the doorbell rings and Hubert Finidori arrives with his rebellious wife in tow for dinner on the wrong night and there is no food in the apartment, (merely an ample supply of wine), it sets the stage for a riveting, catastrophic unraveling of normal civilized behavior. But what kind of a disaster will it be? See what happens when the scenario spins out of control three different ways. As witty and acerbic as “Art,” the delightful “Life x 3” is fast-paced, thought-provoking comedy that will keep your head reeling and leave you laughing with delight and recognition.

The London Times called it “An extraordinary play…the writing is brisk, brittle, funny and lethally accurate." Talkinbroadway.com said it was “captivating and entertaining.” Special VIP priority seating complete with post performance catered reception to meet the cast will be held opening and closing nights in both locations. VIP tickets are $100 per person, general admission starts at $30, and a special $5 student rush ticket is available one hour before curtain with proof of valid student ID. "We are delighted to have finally secured theatre space for a sufficient length of time to be able to offer both Lee and Collier County audiences an extremely high quality of professional theatre at affordable prices” said Bob Harden, Gulfshore Playhouse Chairman of the Board. Unlike the previous critically acclaimed Gulfshore Playhouse productions, ( David Mamet's “Oleanna”, and the original musical, “Romeo and Juliet Redefined’), this season’s offerings will run for 10 days each in both Ft. Myers and Naples.

"Life x 3” features professional actors from all over the country, including Boston, DC, and New York. Bruce Somerville, a New Yorker now residing on Marco Island, heads the cast in the role of Hubert. Bruce is a thirty-year veteran of professional theatre and an original member of the renowned Guthrie Theatre in Minneapolis. Beth Hylton plays opposite Bruce in the role of Sonia, originally created by Helen Hunt. Beth's credits include leading roles at the prestigious Ford’s Theatre, The Folger Shakespeare Theatre, and Arena Stage. Beth comes to Gulfshore Playhouse directly from portraying the role of Amanda in Noel Coward’s “Private Lives” at Pittsburgh Classical Theatre.

08-30-2007

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Gide, Loyrette & Nouel, PC

Gide Loyrette Nouel A.A.R.P.I. advises Johnson Controls on the sale of its automotive diagnostics division to SPX Corporation:
Johnson Controls announced the sale of its automotive diagnostics division to SPX Corporation. Gide Loyrette Nouel is acting as legal counsel to Johnson Controls in this transaction which is expected to close at the end of the third quarter of 2007.

The diagnostics division, located in Pontoise and La Ferté Bernard in France, designs and produces automotive diagnostics systems and electronic garage equipment. It employs a staff of around 240 people in France and, in 2006, earned a gross income of some US$ 80 million.

Johnson Controls, listed on the New York Stock Exchange, is one of the world’s leading specialists in automotive interior and building efficiency technology and electrical energy management. It employs a staff of more than 140 000 people.

SPX, which is also quoted on the New York Stock Exchange, is a global supplier of technical and industrial products and services, with a staff of more than 14 000 employees worldwide.

08-30-2007

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Bell, Boyd & Lloyd, L.L.C.

Bell, Boyd & Lloyd Represents Parlano in Sale to Microsoft
Microsoft Corporation announced yesterday that it intends to acquire Bell, Boyd & Lloyd client Parlano Inc., maker of MindAlign, a leading application for enterprise group chat. Microsoft plans to add Parlano's group chat functionality as a new feature of Microsoft (R) Office Communications Server and Microsoft Office Communicator, Microsoft's server and client software for presence, instant messaging, conferencing and VoIP.

Bell Boyd's Corporate Group was joined by the firm's tax, intellectual property and employee benefits attorneys in representing Parlano in the acquisition. Merrick Hatcher led the team that included Mark McMillan, Sean Bahoshy, Neil Tanis, Paul Metzger, Bonita Hatchett, Peter Zura, and Jeff Gardner.

Headquartered in Chicago, Parlano offers group chat technology that enables people to carry on topic-specific, multiparty instant messaging discussions that persist over time. Parlano's software is used internationally by a variety of industries, including financial services, call centers and technology companies, to conduct ongoing business-critical conversations.

Bell Boyd has represented Parlano, a privately held company, in various patent, intellectual property licensing, and corporate matters, including two rounds of venture funding from Parlano backers Oak Investment Partners and Longworth Venture Partners.

08-30-2007

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Shearman & Sterling LLP

Shearman & Sterling Advises PPM Capital on Acquisition Finance of JiT
Shearman & Sterling has advised PPM Capital Ltd., the private equity arm of the British financial service provider Prudential plc., on the financing of the acquisition of jobs in time holding GmbH (JiT) by orizon GmbH. Shearman & Sterling has advised PPM already on the financing of the acquisition of orizon AG which was completed in March 2007.

JiT is a national provider of human resource solutions with 18 offices throughout Germany. With 10,000 external employees, more than 120 offices and projected sales of over €300 million for the 2007 financial year, orizon GmbH is one of Germany’s 10 largest temporary work agencies (TWA).

The Shearman & Sterling team for this transaction was led by senior associate Winfried Carli (MU-EF).

08-30-2007

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Smith Anderson Blount Dorsett Mitchell & Jernigan LLP

Dwight W. Allen Receives the Distinguished Service Award from the North Carolina Telecommunications Industry Association
Smith Anderson lawyer Dwight W. Allen received the Distinguished Service Award from the North Carolina Telecommunications Industry Association (NCTIA) during its 2007 annual meeting at Pinehurst.

Founded in 1932, NCTIA represents telecommunications organizations that provide telecommunications services to North Carolina's citizens. The organization seeks to promote a pro-business environment in North Carolina that will provide each member company the opportunity to meet customer expectations while achieving operational efficiency and financial success.

Mr. Allen's service to the North Carolina telecommunications industry spans over 30 years. His significant contributions to the industry include serving as President of Sprint Corporation's Mid-Atlantic Operations where he had responsibility for approximately 2 million access lines in four states as well as external affairs for long distance and wireless operations. Mr. Allen also served as Vice President of Administration and General Counsel for both Sprint Mid-Atlantic and Carolina Telephone and Telegraph Company and as legal counsel to the Public Staff of the North Carolina Utilities Commission.

Prior to receiving NCTIA's Distinguished Service Award, Mr. Allen's many accomplishments and honors include Past Executive Vice President, North Carolina Telephone Cooperative Coalition, Inc.; Past President, 40 County Eastern N.C. Chamber of Commerce; Past Chair, Corporate Counsel Section of the N.C. Bar Association; and Past Chair, N.C. Community College Foundation. He participates in numerous business, charitable and civic organizations.

08-30-2007

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