Advice of counsel - defense or dilemma? Friend or foe?

Article Abstract:

Defendants accused of willful patent infringement after timely receiving advice of counsel faces the dilemmas of waiving the attorney-client privilege and of possible disqualification of its trial counsel under the advocate-witness rule. Bifurcation or a separate trial of the willfulness issue may alleviate both dilemmas as the court may be persuaded to grant a separate trial on the willfulness issue after liability is determined. Solutions to the attorney disqualification dilemma are also covered.

Confidential communications, Attorney-client privilege

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Antitrust liability for attempting to enforce a fraudulent patent

Article Abstract:

A patent owner who received his or her patent from the Patent & Trademark Office fraudulently may be the target of a private antitrust suit brought under the Sherman Act. Recent decisions clarified the required elements of a private antitrust suit against patent owners. Establishing fraud in patent prosecution calls for clear and convincing proof of intentional misrepresentation or omission of material facts.

Laws, regulations and rules, Antitrust law, Fraud

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