Innovative Patent & Intellectual Property Attorneys

Why are patent opinions important?

With a patentability opinion, why is that important? Because you don’t want to spend a lot of money into developing this patent and filing it and going through prosecution of it just to find out that right away you’re knocked off the horse because it’s already out there. So you want to spend a little money up front before you spend a lot of money putting it into a patent. What’s increased in importance is not only what you have offensively, but what is your defensive posture? Because at least you want to be able to say, well at least whatever it is that we’re doing here, we don’t infringe someone else. That’s where the freedom to operate opinion comes in. If it’s a close call, you’re really not sure if you’re gonna infringe someone’s patent. It’s like well, I really don’t know if we infringe this patent or not. If you get opinion of counsel that says that you don’t, then at least if it doesn’t go your way in a litigation, the opinion of counsel will help you avoid what they call enhanced damages, where because you had an opinion of competent counsel that says you won’t infringe if you do this, it can’t be said that you willfully infringed that product.

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