This article describes the impact in the willful infringement analysis of a failure of an accused infringer to obtain an opinion of counsel under post-Seagate cases. Although the Federal Circuit held in Seagate that there no longer is an affirmative duty for an accused infringer to obtain an opinion of counsel to avoid enhanced damages for willful infringement, recent cases show that the failure to obtain an opinion of counsel can still be considered by a fact finder in deciding if the infringement was willful. Further, the district courts can, and do, rely heavily on the absence of an opinion of counsel when deciding whether to enhance damages should the jury find the infringement was willful. Thus, opinions of counsel still have an important function in minimizing an accused infringer's risk of being subjected to paying enhanced damages.
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