Making Sure A Noninfringement Opinion Is Effective
By Stephen Ball and Dov Hirsch ( March 14, 2018, 12:22 PM EDT) -- Under 35 U.S.C. § 284, a court may increase damages for patent infringement by up to three times if the infringement is found to be willful.[1] Obtaining an opinion letter on whether or not a product infringes a patent is affordable and effective insurance against these enhanced damages. Additionally, obtaining a noninfringement opinion can provide auxiliary benefits such as identifying design-arounds, bolstering future litigation defenses, and promoting strategic planning. Accordingly, obtaining a noninfringement opinion letter should be a part of all product development plans. However, simply obtaining any noninfringement opinion may not be sufficient. Competency matters. Indeed, the competency of a noninfringement opinion may be the determining factor for or against enhanced damages....
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