In Knorr-Bremse Systeme fuer Nutzfahrzeuge GmbH v. Dana Corp., 383 F.3d 1337 (Fed. Cir. 2004), the Federal Circuit held that a patent infringement litigation plaintiff may not argue to the jury that a defendant who has declined to waive the privilege covering a non-infringement opinion must have received an unfavorable opinion. Lower courts continue to explore the contours of this pro-privilege approach.
In McKesson Information Solutions, Inc. v. Bridge Medical, Inc., No. Civ. S-02-2669 FCD KJM, 2006 U.S. Dist. LEXIS 20929, at *4 (E.D. Cal. Apr. 19, 2006), the court ruled on defendant’s efforts to prevent plaintiff from telling the jury that the defendant had “asserted the attorney‑client privilege over the opinion it received regarding McKesson’s patent.” The court noted that several other courts recently ruled that a litigant could tell the jury that its adversary had never sought an opinion on the infringement issue. However, the court distinguished those cases, and held that Knorr-Bremse prevented the plaintiff from introducing any evidence or testimony regarding the defendant’s privilege assertion over the infringement opinion it had received.
The fallout from Knorr-Bremse continues to show an encouraging emphasis on the attorney-client privilege’s importance.