Conclusions<\/strong><\/h2>\nThe trends in both total number of motions for willfulness and enhanced damages considered by the courts, coupled with the clear rise in success rates of those motions over the last year, suggest that issues of infringement and invalidity deserve careful consideration by would-be infringers.\u00a0 The Courts have not returned to requiring noninfringement and invalidity opinions of counsel to defeat a claim of willfulness, but such opinions certainly do not hurt.\u00a0 On the other hand, a defendant which finds itself facing willful infringement allegations without an opinion letter of counsel already on hand need not necessarily fret, assuming the existence of other circumstances showing that the infringement was not, in fact, willful.\u00a0 While opinion letters are a useful tool to defend against willfulness, they are only a part of the evidence a jury will consider to determine the state of mind at the time infringement began.\u00a0 Given the rise in motions for willfulness and enhanced damages, it would be logical to assume the patent world will see a corresponding rise in infringement and invalidity opinions as well, but many infringers may still overcome charges of willfulness even in the absence of opinions letters by relying upon other convincing evidence to prove they did not in fact mean to infringe.<\/p>\n","protected":false},"excerpt":{"rendered":"
In one of the first district court cases to apply Halo, the Eastern District of Pennsylvania was confronted with a defendant who obtained a noninfringement opinion sometime around the final day of a 12 to 18 month project. See: Dominion Res. Inc. v. Alstom Grid Inc., No. CV 15-224, 2016 WL 5674713 (E.D. Pa. Oct. 3, 2016) (holding that the defendant\u2019s state of mind on the final day of 12-18 month project was far too late to be defense to willfulness) (appeal pending). The court ruled that opinion letters obtained so long after infringement began, even if still during the period of infringement, did not absolve the defendant of willful infringement under a subjective recklessness standard. Shortly thereafter, the District of Delaware was confronted with a case in which the defendant obtained a noninfringement and invalidity opinion well before litigation, and the defendant even modified designs of the products at issue to conform to recommendations contained therein…<\/p>\n","protected":false},"author":109631,"featured_media":82554,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"content-type":"","footnotes":"","_links_to":"","_links_to_target":""},"categories":[7202,7203,6998,228,3],"tags":[553,4721,8730,5531,9193,14149,33,107,10211,14148,248,1574,748],"yst_prominent_words":[],"acf":[],"_links":{"self":[{"href":"https:\/\/ipwatchdog.com\/wp-json\/wp\/v2\/posts\/88181"}],"collection":[{"href":"https:\/\/ipwatchdog.com\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/ipwatchdog.com\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/ipwatchdog.com\/wp-json\/wp\/v2\/users\/109631"}],"replies":[{"embeddable":true,"href":"https:\/\/ipwatchdog.com\/wp-json\/wp\/v2\/comments?post=88181"}],"version-history":[{"count":0,"href":"https:\/\/ipwatchdog.com\/wp-json\/wp\/v2\/posts\/88181\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/ipwatchdog.com\/wp-json\/wp\/v2\/media\/82554"}],"wp:attachment":[{"href":"https:\/\/ipwatchdog.com\/wp-json\/wp\/v2\/media?parent=88181"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/ipwatchdog.com\/wp-json\/wp\/v2\/categories?post=88181"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/ipwatchdog.com\/wp-json\/wp\/v2\/tags?post=88181"},{"taxonomy":"yst_prominent_words","embeddable":true,"href":"https:\/\/ipwatchdog.com\/wp-json\/wp\/v2\/yst_prominent_words?post=88181"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}