assessment to take into account the worst case scenarios to focus on things like settlements and design around and provide advice to the client on those fa do what happens when there might be an admixture of those roles such as when the trial counsel advise the client as to the particular gave extensive advice to the client with regard to what was happening on the opinion letter as well no your honor there's no evidence that that was placed at all trial counsel attended the management of the management whether in fact there are any presumptions that might validly be made if one were looking to draw some bright lines out of the concern that there are very few the latest cures presences who thought that if in fact you get your opinion from some separate person eleven days after suit has been filed whether it's still free of the presumption that it's on tainted by claim infringement i don't see how that impacts it anyway whether that's now my hypothetical my hypothetical is sleeping trial counsel says i now look at the materials in the discover i have looked at the depositions i think that there is if it's unchanged that we have for in fact the accused in pre measured all of these complications that we've handed out here and many more and just says this is too complicated i'm not going to rely on the advice of counsel that and it's it's very difficult for a pound of flesh now to succeed in showing that there was no willful infringement without an opinion of counsel but under some of the district court's interpretation of the apple bright line that you're advocating if in fact we were to abolish the affirmative duty of care and make it clear that there was no mandatory obligation to obtain advice associated with the defense decision we want to wise counsel even though in the decision under my hypothetical would be entirely voluntary if indeed the the advice of counsel that your your only concern the burden of proof or is there more to it the sense here is your only concern you would and many of the the amaechi said the problem is with who has to prove a negative or you ever get the evidence to prove that the evidence to prove your think of the underwater facts themselves where the attorney actually recommended that they go ahead and infringe because they only have to pay royalties anyway how would you ever get that evidence we get that standard for change that will cure significantly the question with respect relevance and change the dynamic quite a bit perhaps avoid entirely this hobson's choice that was to you you've noticed the depositions of seagate attorneys correct yes i'm just interested in what communications would not be disclosed the bill would be that you would not be eve feel you would not be able to ask wall where we will be able to ask whether questions regarding the subject matter but those are what about a statement to the client that they should settle the case or that giving them a percentage of their chances of winning or independently they give their clients their assessment of the case then there's some overlap in terms of the issues and that you think that would be disgruntlement and definitely stem from you emphasized that the opinion came after the litigation started but of course i could issue a patent one day you notice the next and so you two days later and which case the opinion would always come after the litigation began yet but in my hypothetical which isn't that unusual i can have a continuing application on file and taylor claims to attack your product cost point to ninety two cent of all cases allege well from this is that really based on a good faith belief that you got you caught the other guy with their hand in the cookie jar do you think that even though if in fact you had the pleading properly made with specificity there's that carry the day you still have to have the evidence to support and at that point once you prove willful malicious then the burden should shift to the defense i but in most cases it's the other way around the burden is carried by the defense instead of the  infringement believe it he and workman that your intention is to wire up trial counsel near position their opinions with respect to about i understand that but nonetheless i mean if we can assume that through the course of the litigation the trial counsel will be communicating regularly with the client and they'll be sestina and reassessing as the case goes forward as evidence comes to light and as i understand the order this gives you the right to continually pro they defend themselves in effect you have access to to their entire case now you don't have access to their strategy but nonetheless you know what their assessment is of the likelihood of success on the entrenchment validity for sybil somehow that strikes me as being fundamentally wrong although i'm sympathetic to you in terms of drawing the lines between opinion counsel and trial coun whether we should withdraw that duty and step with a higher standard that perhaps would no longer render those opinions relevant or at least you say it doesn't really mean negligence all it means is a duty not to act willfully as i understand what you're saying which is just like whatever the legal standard is you have a duty not to transgress the legal standard that doesn't tell us very much now as far as the affirmative duty which kind of suggests burden of proof you said a while ago i think that there is a burden on the the accused infringer and i think said until you've already used a pet peeve already established proof of willfulness and then the burden shifts to the houston printer to put up a defense it that's not the burden of proof i take the risk of not  the ordinary it's your turn to present evidence if you want to but i take it you're not saying the burden of proof shifts you're saying the burden of proof remains by clear and convincing evidence with the patentee throughout the show willfulness which is more than negligence took a very strange way to read that and it is the language at least from underwater devices i wonder whether that language is long since served its purpose since we seem to agree that and that the burden of proof at least the burden the risk of not persuasion never shift you heard her account of what the right test is is that your view of what the right test