The CAFC has granted en banc review of a petition for write of mandamus concerning the scope of waiver when a party asserts advice of counsel as a defense to alleged wilfull infringement. The questions presented (the third of which comes from the court) are:
(1) Should a party's assertion of the advice of counsel defense to willful infringement extend waiver of the attorney-client privilege to communications with that party's trial counsel? See In re EchoStar Commc'n Corp., 448 F.3d 1294 (Fed.Cir.2006).
(2) What is the effect of any such waiver on work-product immunity?
(3)Given the impact of the statutory duty of care standard announced in Underwater Devices, Inc. v. Morrison-Knudsen Co., 717 F.2d 1380 (Fed.Cir.1983), on the issue of waiver of attorney-client privilege, should this court reconsider the decision in Underwater Devices and the duty of care standard itself?
DM