The value of patent opinions after the America Invents Act (Part 1)

Even with enactment of section 298, opinions of counsel continue to play an important role in patent litigation

On Sept. 16, 2011, the America Invents Act (AIA) was signed into law. Included in the AIA was section 298 entitled “Advice of Counsel” which removed failure to obtain or present advice of counsel as a basis for establishing willful or induced infringement:

The failure of an infringer to obtain the advice of counsel with respect to any allegedly infringed patent, or the failure of the infringer to present such advice to the court or jury, may not be used to prove that the accused infringer willfully infringed the patent or that the infringer intended to induce infringement of the patent.

Contributing Author

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Andrew M. Riddles

Andrew Riddles is a partner in Day Pitney's Intellectual Property Department. He has over 25 years of experience in virtually all aspects of intellectual property,...

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Contributing Author

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Eric J. TeVelde

Eric TeVelde is an associate in the Intellectual Property department at Day Pitney. He previously worked on the research, development, and marketing of pharmaceutical drug...

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