• Opinions Of Counsel After TC Heartland
  • August 8, 2017
  • Law360, New York (July 13, 2017, 12:21 PM EDT) --Prior to the U.S. Supreme Court’s recent decisions in Halo Electronics Inc. v. Pulse Electronics Inc.[1] and TC Heartland LLC v. Kraft Foods Group Brands LLC,[2] opinions of counsel regarding patent infringement and validity, in the face of an assertion of infringement were often eschewed as unnecessary or impractical. On the one hand, opinions of counsel could be used as evidence of willful infringement, and potentially raised questions with respect to attorney-client privilege and work product privilege if used defensively. On the other hand, patent owners had little incentive to give detailed allegations of infringement and accused infringers could reasonably rely on litigation counsel to combat a charge of willfulness. The court’s decisions in Halo and TC Heartland, when combined, have drastically changed this calculus and have reemphasized the importance of opinions of counsel.