Opinions Of Counsel Post-Halo: Lessons From 16 Cases

By Brian Mudge and Shawn O’Dowd (May 22, 2017, 11:34 AM EDT) -- Last year's U.S. Supreme Court decision in Halo lowered the bar for plaintiffs to establish willful patent infringement and enhanced damages.[1] Returning the focus to the infringer's state of mind at the time of infringing conduct, Halo eliminated the ability of an accused infringer to rely solely on defenses developed during litigation as a means to avoid a ruling of willfulness. Now, after years of insignificance, opinions of counsel obtained at the time of potential infringement are once again becoming a vital part of an overall strategy for defending against allegations of willful infringement and enhanced damages....

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