Presentation of Counsel Opinion Letters at Trial

Here is the abstract from a recently published article in the Duke Law and Technology Review, WILLFUL INFRINGEMENT AND THE EVIDENTIARY VALUE OF OPINION LETTERS AFTER KNORR-BREMSE V. DANA (html)(pdf):

Recently, the Federal Circuit in Knorr-Bremse v. Dana overruled almost twenty years of precedent by striking down the adverse inference doctrine, which had created a negative presumption against any alleged patent infringer for failing to obtain and disclose a patent opinion letter at trial. The decision, while strongly supported by numerous intellectual property and business associations, has created uncertainty for patent attorneys regarding the use of opinion letters in litigation and the acceptable methods for proving willful infringement. This iBrief addresses two specific questions left unanswered by the decision. It concludes that (1) Federal Circuit precedent strongly suggests that the plaintiff may inform the fact-finder that the alleged infringer failed to consult legal counsel, and (2) willful infringement findings can probably be avoided even absent an opinion from counsel, as long as the alleged infringer makes a showing of good faith intent to avoid infringement.

Thanks to Branch Furtado, the Chief Executive Editor of the Duke Law and Technology Review for the e-mail about this article.

If anyone has other articles that would appeal to PHOSITA readers, let us know and we will post a link.