ABA on Knorr-Bremse’s impact

October 1, 2004 on 12:18 pm | In Articles |

The ABA’s site has an interesting article up today discussing the impact on the legal community of the Knorr-Bremse decision.  The article focuses on a lesser discussed (in the last few weeks) fact pattern:  what happens when the defendant’s trial counsel wrote the opinion letter? 

Obviously, the plaintiff’s attorney should be allowed to depose/examine the author of the opinion letter…an inherent conflict where the author is the opponent’s attorney.  The result was that defendants would be in the position of disclose (so you can use) the opinion letter and find a new attorney, OR, don’t disclose the opinion letter (keep your current attorney) and face the consequences (the adverse inference of the undisclosed opinion letter). 

Believe it or not, we had a similar fact pattern last year in one of the cases we took to trial.  My senior partner was set to be the expert witness…but ended up taking over the case for the original counsel (and as such we suddenly had an opinion letter we couldn’t use). Knorr-Bremse obviously kills these fact patterns…now you can keep your attorney (IP boutique) without having to face the adverse inference.

Link: 

See also: my previous Knorr-Bremse post.

Link to the ABA Article: PATENT RULING MAY BOOST IP BOUTIQUES–End to Adverse Inference Rule Seen to Speed Litigation BY STEVE SEIDENBERG

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