Patent Reform: New Section 298 Will Preclude Patentees from Proving Willfulness or Inducement Through an Alleged Infringer’s Failure to Obtain or Provide Evidene Opinion of Counsel

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The Leahy-Smith America Invents Act of 2011 (“AIA”) was signed into law by President Obama on September 16, 2011. The first significant overhaul of the U.S. patent system in nearly 60 years, this new patent reform measure ushers in considerable changes in how companies and individuals may obtain and enforce patents in the United States. This is the fifth in a series of articles on the AIA.

Section 17 of the AIA adds a new section to the U.S. Patent Statute, Section 298, entitled “Advice of counsel,” that makes it more difficult to establish willful and induced infringement in exchange for better protection of an accused infringer’s attorney-client relationship. Section 298, which will be added to the Statute as of September 16, 2012, states that

[t]he failure of an infringer to obtain the advice of counsel with respect to any allegedly infringed patent, or the failure of the infringer to present such advice to the court or jury, may not be used to prove that the accused infringer willfully infringed the patent or that the infringer intended to induce infringement of the patent.

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McDonnell Boehnen Hulbert & Berghoff LLP on:

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