Bloomberg BNA Publishes Kahn and Petegorsky Article on District Court’s Subject-Matter Waiver Ruling

Bloomberg BNA’s Patent, Trademark & Copyright Journal has published the article “Involvement of Opinion Counsel in Trial Strategy Results in a Broad, Subject Matter Waiver that Extends to Trial Counsel,” written by Akin Gump intellectual property partner Michael Kahn and associate Michael Petegorsky. The article examines a decision by the U.S. District Court for the Eastern District of North Carolina that significantly broadened the scope of the waiver “of the attorney-client privilege for a party relying on the advice-of-counsel defense to an allegation of willful patent infringement.”

In the past, the authors write, the waiver was traditionally restricted in scope to communications between opinion counsel and the defendant. Now, however, with the broad waiver, there are, according to Kahn and Petegorsky, “significant ramifications for parties seeking to rely on noninfringement or invalidity opinions to counter willful infringement claims.”

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