Legal departments often grapple with the issue of how to review a competitor’s patents without stepping into a hornet’s nest of increased liability. Reading a patent and realizing your company potentially may be infringing it can lead to a finding of willful infringement in court, whereby the judge can triple any damages award against your company. It also can establish the knowledge element of inducement of infringement and contributory infringement.
On the other hand, company management and product development teams often push the legal department to confirm that a new product idea will be free of any infringement problems. Faced with these competing concerns, what should an in-house attorney do?