The case in question involves a German company, Knorr-Bremse, which sued Dana and Haldex corporations for violating its patent (US 5,927,445) on air-disc brakes. A district court found infringement but awarded no damages because no infringing devices were sold. However, the court awarded Knorr-Bremse about US $700,000 for attorney fees and court costs, ruling that the patent had been wilfully infringed because one of the defendants failed to obtain an opinion letter and the other refused to produce its letter at trial. The Federal Circuit has sent the case back to the district court for re-determination with instructions to consider the totality of the circumstances, but without the presumptive weight of an adverse inference that was or would have been unfavourable.

The Federal Circuit followed an unusual course in deciding voluntarily to hear the case en banc. A call for amicus briefs (documents filed by third parties) resulted in a number of opinions from intellectual property groups, the Securities Industry Association and national organizations, including the American Bar Association, all in support of abandoning the doctrine. The court overturned the rule in a 10-to-1 opinion by Judge Pauline Newman.

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