In Re Seagate: Did it Really Fix the Waiver Issue? A Short Review and Analysis of Waiver Resulting From the Use of a Counsel's Opinion Letter as a Defense to Willful Infringement

The Federal Circuit, through its decision in Seagate, sought to clarify and definitively establish various consequences of an assertion of willful infringement by a patentee. This comment discusses the history and potential outcomes of the Seagate decision; first, by outlining basic issues of privilege and immunity and examining the history of uncertainty regarding waiver leading up to the Seagate decision. The remainder of the comment examines the potential outcomes of the decision, and presents possible resolutions to further resolve the issue and more fully repair attorney-client privilege and immunity.