Objective Recklessness: Failure to Obtain Advice of Counsel is Relevant to Willfulness Inquiry

After the Federal Circuit released its Seagate decision, Patently-O asked a fair question: “What role, if any, is there for the thick, formal opinions explaining in detail why a particular patent is invalid, unenforceable, and/or not infringed?”

A recent decision by District of Delaware Chief Judge Gregory M. Sleet goes a long way in answering that question in this district. In its January 4th order, the Court stated that while Seagate “does effect a change in the standard for willfulness . . . it does not inform the totality of circumstances analysis for the objective recklessness standard . . . .” Therefore, “nothing in Seagate forbids a jury to consider whether a defendant obtained advice of counsel as part of the totality of the circumstances in determining willfulness.”

As a result, the Court allowed the evidence of defendants’ failure to obtain advice of counsel.

Energy Transportation Group Inc. v. William Demant Holding A/S, C.A. No. 05-422-GMS (D. Del. Jan. 4, 2008) (Sleet, C.J.).

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