A recent decision teaches that it is a definite plus to have such an attorney’s opinion in hand as part of a defense against a charge of willful patent infringement. The case is Spectralytics, Inc. v. Cortis Corp. (http://scholar.google.com/scholar_case?case=16071046866954832959&hl=en&as_sdt=2&as_vis=1&oi=scholarr). That case held that, when deciding whether to award enhanced damages to a patentee, it is permissible for the court to take into consideration whether or not the defendant had obtained a counsel’s opinion. The lack of such an opinion was one factor in the Federal Circuit holding that the lower court needed to reconsider its denial of enhanced damages.
