Resurgence of the Need for Opinions of Counsel


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.

LOADING PDF: If there are any problems, click here to download the file.

Written by:

Published In:

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Robert Matthews, Jr., Matthews Patent-Law Consulting | Attorney Advertising

Don't miss a thing! Build a custom news brief:

Read fresh new writing on compliance, cybersecurity, Dodd-Frank, whistleblowers, social media, hiring & firing, patent reform, the NLRB, Obamacare, the SEC…

…or whatever matters the most to you. Follow authors, firms, and topics on JD Supra.

Create your news brief now - it's free and easy »


Robert Matthews, Jr.
Matthews Patent-Law Consulting

A patent lawyer that many other patent lawyers themselves turn to when faced with complicated or... View Profile »

Follow Matthews Patent-Law Consulting:

Reporters on Deadline

All the intelligence you need, in one easy email:

Great! Your first step to building an email digest of JD Supra authors and topics. Log in with LinkedIn so we can start sending your digest...

Sign up for your custom alerts now, using LinkedIn ›

* With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name.