The Federal Circuit today issued an en banc opinion in In re Seagate Technology (http://www.fedcir.gov/opinions/M830.pdf).
In this case, the Federal Circuit overruled Underwater Devices, and in so doing, explicitly abandoned the affirmative duty of due care, i.e., there is no affirmative obligation to obtain an opinion letter from patent counsel. Rather, the court held that a finding of willful infringement requires at least a showing of objective recklessness. The Federal Circuit further held that when a defendant relies on an opinion letter, the scope of waiver of the attorney-client privilege and work product immunity does not generally extend to trial counsel. In connection with this holding, the court noted that a willfulness allegation in the complaint must be based on pre-filing conduct and that post-filing conduct can be addressed through preliminary injunction proceedings. Furthermore, a patentee who fails to move for a preliminary injunction cannot accrue enhanced damages based solely on post-suit conduct. The only exceptions noted for waiver of trial counsel attorney-client privilege and work product generally relate to "chicanery" between the trial counsel and opinion counsel.