35 U.S.C. § 298
Advice of counsel
The failure of an infringer to obtain the advice of counsel with respect to any allegedly infringed patent, or the failure of the infringer to present such advice to the court or jury, may not be used to prove that the accused infringer willfully infringed the patent or that the infringer intended to induce infringement of the patent.
Notes of Decisions
Cited in 25
cases (10 in the last 5 years), 2014–2024 · leading case: Halo Elec., Inc. v. Pulse Elec., Inc., 195 L. Ed. 2d 278 (2016).
Halo Elec., Inc. v. Pulse Elec., Inc., 195 L. Ed. 2d 278 (2016). “" 35 U.S.C. § 298 . Respondents contend that the reference to willfulness reflects an endorsement of Seagate 's willfulness test.”
Sri Int'l, Inc. v. Cisco Sys., Inc., 930 F.3d 1295 (Fed. Cir. 2019). “Finally, Cisco's decision not to seek an advice-of-counsel defense is legally irrelevant under 35 U.S.C. § 298 . Viewing the record in the light most favorable to SRI, the jury's verdict of willful infringement before May 8, 2012 is not supported by substantial evidence.”
Carson Optical Inc. v. eBay Inc., 202 F. Supp. 3d 247 (E.D.N.Y 2016). “Advice of Counsel The parties dispute the applicability of 35 U.S.C. § 298 to the instant proceedings.”
Sri Int'l, Inc. v. Cisco Sys., Inc., 918 F.3d 1368 (Fed. Cir. 2019). “Finally, Cisco’s decision not to seek an advice-of-counsel defense is legally irrelevant under 35 U.S.C. § 298 . Viewing the record in the light most favorable to SRI, the jury’s verdict of willful infringement before May 8, 2012 is not supported by substantial evidence.”
Milwaukee Elec. Tool Corp. v. Snap-On Inc., 288 F. Supp. 3d 872 (E.D. Wis. 2017). “Additionally, while Snap-On's failure to obtain the opinion of counsel could not be admitted at trial to support the threshold finding of willfulness, 35 U.S.C. § 298 , it can be relevant to enhancement, see Halo , 281 F.”
Asia Vital Components Co., Ltd. v. Asetek Danmark A/S, 377 F. Supp. 3d 990 (N.D. Cal. 2019). “This argument is now barred by 35 U.S.C. § 298 , which provides, in relevant part, that "[t]he failure of an infringer to obtain the advice of counsel with respect to any allegedly infringed patent .”
Sonos, Inc. v. D&M Holdings Inc., 297 F. Supp. 3d 501 (D. Del. 2017). “; and third, that the opinions are contrary to 35 U.S.C. § 298 , which prohibits using the absence of advice of counsel to prove that the accused infringer willfully infringed.”
Halo Elec., Inc. v. Pulse Elec., Inc., 780 F.3d 1357 (Fed. Cir. 2015). “Congress did- add 35 U.S.C. § 298 to the statute to prescribe an evidentiary rule about proving that an infringer has “willfully infringed,” which is a standard that is not expressly recited in § 284 (or anywhere else in the Patent Act) but that has long been held to be central…”
Provisur Tech., Inc. v. Weber, Inc., 119 F.4th 948 (Fed. Cir. 2024). “White’s testimony violated 35 U.S.C. § 298 . Provi- sur argues Mr. White’s testimony is about industry stand- ards for intellectual property management.”
Suprema, Inc. v. Int'l Trade Comm'n, 626 F. App'x 273 (Fed. Cir. 2015). “” 35 U.S.C. § 298 . Because the AIA only applies to patents issued on or after September 16, 2012, and the '344 and '562 patents issued in 2007, this provision does not control here.”
Ultratec, Inc. v. Sorenson Commc'ns, Inc., 45 F. Supp. 3d 881 (W.D. Wis. 2014). “35 U.S.C. § 298 . Even without the failure to obtain a legal opinion, however, I am persuaded that there is enough evidence from which a jury could infer that defendants put their heads in the sand to avoid confirming their belief that they were infringing plaintiffs’ patents.”
SRI Int'l Inc. v. Cisco Sys. Inc. (D. Del. 2020). “In doing so, the Court of Appeals noted, “Cisco’s decision not to seek an advice-of- counsel defense is legally irrelevant under 35 U.S.C. § 298 .” Jd. In the context of the opinion, I think this is a reference to SRI’s argument that the “key engineers” did not look at the…”
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.