Patent Non-infringement Opinion

Patent non-infringement opinion
Patent non-infringement opinion

A patent grants the right to exclude others from making, using, offering for sale, selling or importing the patented invention for a limited time. A non-infringement opinion is a legal opinion concerning whether a specific product infringes a given patent.  We represent international clients and China clients to issue patent non-infringement opinion for their businesses and operations in China. Non-infringement opinions are similar to clearance opinions, only usually significantly more involved and complex.

Infringement of a patent is essentially an act of trespassing on the rights belonging to the patent owner as defined by the claims of the patent. A finding of willful infringement in patent litigation is every defendant’s nightmare because the patent law allows the judge, upon request by the patent owner, to increase the damages, up to three times the compensatory damages awarded by the fact finder, i.e., the jury or the judge in the case of a bench trial.

Patent Non-infringement Opinions

Patent infringement is a commercial harm that occurs when a person makes, uses, sells, or imports a patented product without permission from the patent owner. It takes place generally when that person does not exercise due care to avoid infringement. For example, if you launch a product without obtaining a freedom to operate opinion, or without ordering and studying search results for similar products.

Note however, that such freedom to operate opinions are no guarantee of non-infringement -- they only help to lessen the chance that your product will become embroiled in a patent dispute after launch.

Patent non-infringement opinions are generally offered by patent attorneys who are also attorneys-at-law, given the intense legal analysis involved. In the United States, such opinions can only be offered by attorneys-at-law because they require a thorough understanding of the law as well as an understanding of what the product you wish to launch is, together with the ability to compare the legal language of the claims of a competitor's patent to this product.

Our Provide patent non-infringement opinion includes:

  •  Research and analyze third party patent portfolio to establish scope of patent coverage.
  •  Assess whether proposed improvements to trade secret technology are clear from scope of third party patent claims.
  •  Provide written opinion on non-infringement of third party patent claims.

In such opinions, these expert attorneys provide an opinion as to whether the product might infringe the competitor's patent. The communication of the initial opinion that your product might infringe this patent is almost always done orally, with the goal of prompting a change in the design that no longer infringes the competitor's patent. At this point, a formal, well-reasoned, written non-infringement opinion may be provided.


We help our clients avoid the costly expense of wasted time and resources committed to developing and manufacturing new products that may infringe upon an existing patent. An infringement opinion is a useful tool that helps protect innovators by researching and evaluating products or services that are similar to the client’s and determining and providing a recommendation to either proceed as planned or make changes in order to avoid willful infringement.

We have access to national and international resources for conducting infringement and validity searches in order to assure that the most relevant pieces of information are identified, analyzed, and considered in the process of drafting our opinions. These opinions are helpful insurance policies against the possible future litigation, as they demonstrate that innovators have made every possible effort to avoid infringing on an existing patent.

Such opinions can be used in courts of law as circumstantial evidence to establish intent to infringe, which can result in the trebling of damages assessed against the infringer. Because of their complexity, these opinions generally cost from US$1000 to as high as US$3,000, sometime higher.

Infringement Opinion.  An infringement opinion may be requested by a patent holder when the patent holder wants to know if someone else is infringing the patent holder’s patent.  This opinion may help the patent holder decide whether to file suit for patent infringement.