Knorr-Bremse v. Dana Corp. (E.D. Va. 2005).
In a 2004 landmark decision, an en banc panel of Federal Circuit judges found that “no adverse inference that an opinion of counsel was or would have been unfavorable flows from an alleged infringer’s failure to obtain or produce an exculpatory opinion of counsel.”Knorr-Bremse Systeme Fuer Nutzfahrzeuge GmbH v. Dana Corp., et al., 383 F.3d 1337 (Fed. Cir. 2004). Because the adverse inference comprised a portion of the district court’s decision, the CAFC vacated the original finding.
On remand, Judge T.S. Ellis, III in the Eastern District of Virginia took a new look at the issues of treble damages for willful infringement and attorney’s fees under the “exceptional case” standard. In doing so, the court found that even absent the prohibited adverse inference, there were sufficient factors supporting the finding of willful inference.
[T]he totality of the circumstances presented here — and wholly without the now-proscribed adverse inference — still compels the conclusion that defendants’ use of the Mark II air disk brake, and indeed their continued use of the Mark II air disk brake throughout the instant litigation, amounted to willful infringement of the ‘445 patent.
Regarding attorney fees, the court noted that “an award of attorney’s feed does not automatically follow from a finding of willful infringement.” In this case, the court determined that Knorr had “failed to establish by clear and convincing evidence that defendants engaged in any bad faith litigation or inequitable conduct” and the defendant’s willful infringement was “not so egregious . . . as to justify an award of attorney’s fees.”