A Guide to Patent Non-Infringement Opinions

When you need legal information about protecting your rights, the Evergreen Valley Law Group can help. Contact us to discuss your non-infringement opinions.

upcounsel rev min


oracle l g
adobe l
yahoo l
texas instruments l
synopsys l
cadance l
philips l
nxp l

What Is a Non-Infringement Opinion?

An essential part of new product development for manufacturers and innovators is avoiding infringement of existing patents. Infringing on an existing patent in the US could expose you or your company to significant legal consequences. As a result of a patent infringement lawsuit against you, the originality and authenticity of your inventions could also be questioned in the future, which could significantly affect your business’s growth.

To prevent this, manufacturers, inventors, or technology producers often approach an intellectual property attorney to conduct an analysis and render a non-infringement opinion before embarking on any new production project. 

A non -infringement analysis/opinion is a valuable tool that helps protect innovators by researching and evaluating products or services that are similar to their proposed product and determining and providing a recommendation to either proceed as planned or make changes to avoid willful infringement. The non-infringement opinion can be used as a safeguard to disprove willful patent infringement if the issue arises in the future.

In order to avoid wasting time and money on an invention that violates US intellectual property laws, it is crucial to obtain a non-infringement opinion early on in the product development process. So, if you need to find out whether a product you are designing infringes on any existing patents, it would benefit you to consult with a California Patent Attorney to get an opinion. 

How Non-Infringement Opinions Work

A non-infringement opinion is a legal opinion used to determine whether an upcoming innovation offends an existing patent right. The opinion helps the company or inventor decide whether to proceed with production, change their design or discontinue the product development.

Non-infringement opinions also serve as a buffer or defense during patent infringement litigation. Getting a non-infringement opinion before innovation begins is often used to show the court that even if a patent infringement has occurred, it did not occur willfully. The opinion may give the judge a good reason not to order enhanced damages against the supposed infringer even though they may be liable under the law since the infringement was unintentional.

So, considering the increasing number of innovations and technology products in today’s world and the highly litigious society we live in, a non-infringement opinion is more important than ever. It can save you from spending lots of money paying for court-ordered damages, which could profoundly affect your finances. So, consider getting one as part of your intellectual property risk management strategy.

Patent Non-infringement Analysis

A non-infringement opinion is the written result of a comprehensive non-infringement analysis by a patent attorney. The analysis is a detailed comparison between the client’s product/process and similar existing patents identified by the client.

The patent attorney systematically analyses the competing patent (s) claims to identify their client’s infringing or non -infringing position. The essence of the analysis is to give “clearance” after assessing the technology, design, and operation process, comparing it to specific patents, and determining that there is no infringement. This is why the resulting non-infringement opinion is also called a clearance opinion.

However, the analysis process, to a large extent, depends on the analyst’s understanding of the invention in question. A misconception of what the product is about can lead to a flawed output (opinion), leading to increased liability if the opinion is relied upon. As much as you need to explain how your invention works to your attorney, it is vital that you work with an attorney who has worked with products similar to yours in the past to avoid any misunderstanding and minimize mistakes.

    Other Types of Patent Opinions 

    A non-infringement opinion is one of several types of patent opinions that are used before the innovation and patent registration process. Some of the others are highlighted as follows:

    Patentability Opinion

    Usually, patentability opinions are requested when someone needs to know the likelihood of obtaining a patent on a new device, method, or composition. Often these opinions are requested before a decision to proceed with a patent application.

    A patentability opinion generally follows a patent search for prior patents at the United States Patent and Trademark Office (USPTO) and checks for any similarities that could make the USPTO reject a patent application for the new or proposed invention.


    Infringement Opinion

    If you are a patent holder and you need to know whether someone else is infringing the patent on your product or process, you could request an infringement opinion from your attorney. The opinion could affect your decision on whether to launch a lawsuit for patent infringement.


    Validity Opinion

    When someone is concerned about infringing on a specific patent, they may need more information on the validity and enforceability of that patent. In such cases, a validity opinion would be written to meet this need. You may also request a validity opinion as a patent holder potentially considering a lawsuit against an infringer of your patent. The opinion would confirm the validity and enforceability of your patent to enable you to decide whether or not to sue.

    Get the Patent Opinion You Need From Experienced Patent Attorneys


    Product, process, and technological innovations require time and expense. Getting a patent opinion at the initial innovation stage can help you determine if the investment is worth it and whether or not to proceed.

    A patent attorney from Evergreen Valley Law Group can provide you with an opinion if you are considering launching a new product or believe that your existing patent has been infringed upon.

    IP Attorneys at Evergreen Valley Law Group Can Help


    If you need a Bay Area IP Attorney to conduct a non-infringement analysis and render a patent opinion on your behalf, you can contact the Evergreen Valley Law Group. We are skilled IP attorneys with several years of patent prosecution experience.

    We have access to national and international practical law resources for conducting infringement and validity searches to ensure that the most relevant information is identified, analyzed, and considered in drafting our opinions. Thus our patent opinions serve as helpful insurance policies in the event of litigation, as they demonstrate that our clients have made every possible effort to avoid infringing on an existing patent.

    Contact the Evergreen Valley Law Group today to schedule a free initial consultation if you have further questions about protecting your patent rights or opinions. Let us assess your case and help you create a unique solution to protect your intellectual property.