No adverse inference of infringement where opinion of counsel addressed only invalidity
IMX, Inc. v. Lendingtree, LLC, No. 03-1067-SLR; Jan. 6, 2006.
Robinson, J: Pretrial conference request to limit plaintiff from arguing inference based upon the opinion of counsel, which addressed invalidity but not infringement was granted.
The Federal Circuit made it clear in Knorr-Bremse that no adverse inference flows from the failure to obtain an exculpatory opinion of counsel. However, evidence that the opinion of counsel addressed invalidity but not infringement may be considered by the trier of fact in assessing willful infringement taking into account the totality of the circumstances. No inference may be drawn to suggest that such an opinion, had it been acquired, would have been unfavorable to defendant.
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