Opinions

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Opinions

The law on the effects of formal legal opinion as a factor in determining willful infringement of a patent is still not settled. When uncertain whether you are possibility infringing a patent, our attorneys can analyze the problem patent and provide a legal written opinion about invalidity, non infringement, and patentability that can guide you about the risks in continuing with the current course of action.

In a conclusion of a recent article: 

The trends in both total number of motions for willfulness and enhanced damages considered by the courts, coupled with the clear rise in success rates of those motions over the last year, suggest that issues of infringement and invalidity deserve careful consideration by would-be infringers.  The Courts have not returned to requiring noninfringement and invalidity opinions of counsel to defeat a claim of willfulness, but such opinions certainly do not hurt.  On the other hand, a defendant which finds itself facing willful infringement allegations without an opinion letter of counsel already on hand need not necessarily fret, assuming the existence of other circumstances showing that the infringement was not, in fact, willful.  While opinion letters are a useful tool to defend against willfulness, they are only a part of the evidence a jury will consider to determine the state of mind at the time infringement began.  Given the rise in motions for willfulness and enhanced damages, it would be logical to assume the patent world will see a corresponding rise in infringement and invalidity opinions as well, but many infringers may still overcome charges of willfulness even in the absence of opinions letters by relying upon other convincing evidence to prove they did not in fact mean to infringe.  
 

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