Rooted in the earliest traditions of common law, the attorney-client privilege and work product doctrine have long been recognized as essential to the full and frank communications between attorneys and their clients. Their protections require the client to be free from fear that the communications will be disclosed.
The protections of the attorney-client privilege and work product doctrine have been threatened in a patent case pending before the U.S. Court of Appeals for the Federal Circuit, Knorr-Bremse Systeme Fuer Nutzfahrzeuge GMBH v. Dana Corp., Case No. 01-1357, -1376, 02-1221, -1256. The issue before the appellate court is whether the trier of fact is permitted to draw an inference of willful infringement if the defendant in an infringement action invokes the attorney-client privilege and/or work product doctrine.
Championing the attorney-client privilege, the Association of Corporate Counsel (ACC) and its Intellectual Property Committee filed an amicus brief challenging the adverse inference. Taking no position on the underlying dispute, ACC focused on the pernicious effects that the adverse inference has on the effective functioning of attorney-client relationships.
The firm of Kilpatrick Stockton LLP supported the IP Committee in preparing the filing the brief with contributions from John Ball, Steve Baskin, Tom Corrado, Michael Dimino, Aleta Mills, Tiep Nguyen, Christopher Ott, Judy Powell, Cindy Rothschild, Eric Sophir, Mitch Stockwell, Buddy Toliver and Camilla Williams. IP Committee members contributing to the brief included Natalie Butto, Tropicana Products, Inc.; Nelson Blish, Eastman Kodak Company; John Hogan, Jr. and Reem Jishi, Wyeth; and Taraneh Maghame, Hewlett Packard.
For a copy of the brief, visit the IP Committee's web page at www.acca.com.
Nelson Blish is Patent Counsel at Eastman Kodak Company. He chairs the Intellectual Property Committee of the Association of Corporate Counsel and is on the Board of Directors of the Pacific Intellectual Property Law Association.