Non-Infringement & Infringement Opinions

Why These Opinions Are Necessary for Clients

When a client receives a demand letter from a patent owner alleging infringement, or when they suspect a competitor is infringing their own patent, seeking a patent non-infringement or infringement opinion becomes essential. These opinions provide a legal roadmap—either to defend against accusations or to evaluate the strength of a potential lawsuit. For a client facing an infringement claim, a non-infringement opinion offers a reasoned defense, potentially avoiding costly litigation or settlement payouts. Conversely, when considering action against an alleged infringer, an infringement opinion assesses whether the case is winnable, ensuring resources are invested wisely. In both scenarios, these opinions bring clarity to complex IP disputes, empowering clients to make informed decisions.

Defending Against Willful Infringement and Increased Damages

A well-crafted non-infringement opinion can be a powerful shield against charges of willful patent infringement, where a court may triple damages if the infringement is deemed intentional. When a client receives a demand letter, obtaining this opinion demonstrates good faith—they’ve sought expert advice and reasonably believe their actions don’t infringe. Courts often view this as evidence against willfulness, reducing the risk of enhanced damages. For example, if the opinion concludes that the client’s product doesn’t meet all elements of the patent’s claims, it provides a solid basis for defense, showing the infringement wasn’t deliberate. This proactive step can save clients from hefty financial penalties and strengthen their position in negotiations or trial.

How These Opinions Help When Considering a Lawsuit

For clients contemplating legal action against an alleged infringer, an infringement opinion is a critical first step. It analyzes whether the competitor’s product or process violates the client’s patent claims, offering a realistic assessment of the case’s merits. This helps clients avoid frivolous lawsuits that waste time and money, focusing instead on disputes with a high likelihood of success. The opinion also supports strategic planning—whether to pursue litigation, seek a licensing deal, or issue a cease-and-desist letter—ensuring the client’s IP rights are enforced effectively and efficiently.

What’s Involved in Drafting These Opinions

Drafting a patent non-infringement or infringement opinion is a detailed, analytical process requiring deep expertise. It starts with a thorough review of the patent in question, focusing on its claims—the legally enforceable boundaries of protection. For a non-infringement opinion, counsel compares the client’s product or process to these claims, element by element, to determine if any are unmet, thus negating infringement. For an infringement opinion, the analysis flips—examining the alleged infringer’s product to see if it falls within the patent’s scope. This involves researching patent file histories, prior art, and relevant case law, followed by a written opinion that outlines findings, legal reasoning, and conclusions. The result is a concise, defensible document tailored to the client’s situation.