AIPLA News Bytes for 9/30/2003October 6, 2003

The following are abbreviated notes from Sept. 30, 2003, American Intellectual Property Law Association Reports newsletter. For the full version, go to www.aipla.org.Patent Act amendment defines attorney-client privilegeThe AIPLA Board recently approved a resolution that Section 284 of the Patent Act should be amended to state, among other things, that no adverse inference may be drawn from an assertion of attorney-client privilege or other immunity as a basis for not revealing advice of counsel. The text of what is proposed to be added is as follows:For purposes of determining whether to increase damages under this section, the court may consider the willfulness of any infringement.A finding of willfulness requires that the infringer failed to exercise due care to determine whether the infringer would be liable for infringement. A duty to exercise due care under this subsection shall only arise upon (i) written notice by or on behalf of the patentee of specific acts of infringement or (ii) the deliberate copying of a patented invention with knowledge that it is patented. Proof by clear and convincing evidence that an infringer deliberately copied the patented invention with knowledge that it is patented and without due consideration of whether the patent may be infringed, unenforceable, or invalid, establishes that the infringer failed to exercise due care. Reasonable reliance on advice of counsel, offered into evidence, shall establish due care.Under this section, no adverse inference may be drawn from an assertion of attorney-client privilege or other immunity as a basis for not revealing advice of counsel.The Amicus Committee is currently reviewing the Federal Circuit