In re Seagate: the Statutory Issue

Everyone's blogging and no doubt drafting articles on the various impact on the attorney client privilege and the use of opinions of counsel that the Federal Circuit's en banc decision in In Re Seagate, __ F.3d __, 2007 WL 2358677 (Fed. Cir. Aug. 20, 2007). What struck me as I re-read the case this morning (for a book chapter on ethical issues in patent practice that I'm preparing), is the statutory issue: the court, without the issue really being raised up before it, held that its 25-year old interpretation of 35 USC 284 (from Underwater Devices v. Morrison-Knudsen) holding that the statute imposed a duty of due care on parties to avoid infringement of valid patents, was incorrect. The court did not confront the long-standing nature of this interpretation or the fact that, since it was decided, that Congress has repeatedly considered bills to change the standard from Morrison-Knudesen, which suggests that Congress knew of the interpretation but wanted to chagne the statutte. (I was on an ABA committee where we drafted one proposal, and that was 15 years ago) but has adopted nothing.

It seemed to me that there is a strong argument that, whatever the policies, Congress had let the Underwater Devices' interpretation stand for decades...