Foley & Lardner is an excellent source of
information on legal matters and industry trends. They regularly publish
and disseminate white papers, articles, surveys, studies, and
presentations on landmark subject matter.

This white paper (pdf)
Crafting an Effective Patent Invalidity Opinion – Is It the Last Bastion of Defense? comes to the conclusion “In
a perfect world, an accused infringer should not have to rely solely on
an opinion of counsel to avoid a willfulness finding and/or enhanced
damages or attorneys’ fees. However, where such an opinion is a
company’s last bastion of defense, due care and consideration should be
taken on the drafter, format, substance, the content of the invalidity
defenses asserted, and the timing of when such an opinion is sought.”

Much interesting territory is covered in the paper including a review
of patent validity cases.  While the number of cases are very
small, early indicators are telling:

Pharmaceuticals      27 % decisions held invalid
Software                 67 % decisions held invalid
originally Posted to  by David Soul on 2/14/04; 3:15:10 PM
in the IP section.


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Tags: CEP, intellectual property

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