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Adverse Inference Rule Better Defined in 'Knorr-Bremse v. Dana'
November 17, 2004 Full PDF
Lew Clayton's article, "Adverse Inference Rule Better Defined in 'Knorr-Bremse v. Dana'" is featured in the November 17 New York Law Journal. The article discusses the Federal Circuit's en banc opinion in Knorr-Bremse v. Dana. Overruling a host of cases including Kloster Speedstell AB v. Crucible Inc., the Knorr-Bremse decision holds that the defendant's invocation of privilege or failure to obtain legal advice in a patent case will no longer give rise to an adverse inference that an opinion was or would have been unfavorable. Lew concludes that the ruling will reduce the pressure many competitors feel to obtain comprehensive opinions of counsel when patent litigation is threatened. Defendants will now have a viable option to forgo an opinion, or to withhold an opinion if they believe it will not aid their case. The article also discusses other significant recent copyright, patent and trademark cases. Susanna Buergel assisted in the preparation of this article.