Refuting Willful Patent Infringement after Knorr-Bremse

Todd Mayover at the "IP Counsel Blog" suggests that courts adopt the following approach for allowing infringers to refute a charge of willful patent infringement now that the adverse inference rule has been abolished by Knorr-Bremse Systeme Fuer Nutzfahreuge GmBH v. Dana Corp:

[Although] a defendant should be able to state that it obtained an opinion
of counsel as part of the total evidence without waiving the attorney-client
privilege for purposes of willful infringement determination, what else might a
defendant do to refute a charge of willfulness?

1. The defendant should be able to present evidence that it conducted a
   clearance search of the patent literature;
2. The defendant should be able to present evidence that it consulted patent counsel (in-house and/or external) after learning of the patent-in-suit;
3. The defendant should be able to present evidence that it made an internal infringement analysis of the patent-in-suit and its new product; and
4. The defendant should be able to present evidence that it did not deliberately copy the designs and ideas described in the patent-in-suit.

Although the burden of proving willful infringement is on the patentee, an accused defendant must possess an ability to refute such charges without having to waive attorney-client privilege when relying on opinion of counsel. Otherwise, what evidence would a court consider to show that a defendant did not act in wanton disregard of the patentee’s patent rights?

Further, how will a court exercise its discretion to determine whether and to
what extent to enhance damages based upon the totality of the circumstances, if
a defendant cannot present evidence of meeting its burden of due care as part of
the totality of the circumstances?

At the very least, a defendant should be permitted to introduce evidence that it consulted counsel without having to share the opinion of counsel, now that the adverse inference rule has been abolished.

It all sounds very similar to my proactive and preventative approach to providing I/P services.