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Patent Opinions

China patent opinion

Patent lawyers at this china law firm is regularly asked to render legal opinions on issues related to patents. A patent opinion is a comprehensive analysis of a business entity's position with respect to the patent landscape prepared by counsel utilizing the attorney's experience in intellectual property law. There are four types of opinions commonly prepared by patent attorneys: freedom to operate opinions, infringement opinions, patentability opinions, and validity opinions. Obtaining an opinion as to the invalidity of a patent may provide a defense against willful infringement. On the other hand, failure to obtain a non-infringement opinion may serve as evidence of intent to induce infringement.

There are several different types of patent opinions:

Patentability Opinions

A patentability opinion advises you as to whether or not it may be worth the time and expense of pursuing patent protection. These opinions answer the questions of what possible action the patent office might take on your application and whether or not it is likely that the patent office will grant a patent for the invention claimed in your application.

Such opinions are not a guarantee that a patent will or will not be granted. Rather, they are our assessment of the likelihood of obtaining patent protection, based on our experience in these matters.

Patentability opinions cost an average of $1500 if delivered in writing and as low as $800 if delivered verbally. The costs can increase to several thousand dollars depending on the complexity of the invention and the number of prior art documents found.

Right-to-Use Opinion.

Freedom to Operate opinions determine whether a product or process would likely infringe the valid and enforceable rights of a third party. These opinions are helpful at the beginning of technology development, prior to investing significant funds, in identifying the risks associated with development of a particular project. A right-to-use opinion is usually requested when a client wants to know whether that client’s new product or process infringes any active patents.  In other words, the client wants to know whether its new product or process will potentially expose the client to a lawsuit for patent infringement.  This opinion may help the client decide whether or not to move forward with the new product or process.  A right-to-use opinion is based on a search for active patents.

Non-Infringement Opinion.

A non-infringement opinion is frequently requested when a client wants assurance that it is not infringing a particular patent.  The patent may be owned, for example, by the client’s competitor. While the right-to-use opinion focuses on infringement issues in general, the non-infringement opinion looks at specific patents and inventions to determine exact infringement issues.

If, for example, one software provider found another software product that was very similar to its own, it could pursue a non-infringement opinion that would give the inventors an idea of which areas of the software were more likely to infringe on the existing patents.

This is different than the right-to-use opinion because it pinpoints specific claims rather than the invention on the whole. This way, the inventor can have a breakdown of the features, functions or characteristics that must be altered in order to receive patent protection. This is often used for competing inventors or companies that have very similar products but want to avoid infringement conflicts.

Infringement Opinion.

Infringement opinions determine whether an accused device, process, or design of another infringes upon a client's patent. Such an opinion is helpful prior to engaging in the time consuming and costly process of litigation. Patentability opinions occur prior to filing a patent application and help determine whether an invention satisfies the conditions for patentability. 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.

Validity Opinion.

Validity opinions determine the validity and enforceability of a patent. Such opinions arise either when a company is accused of patent infringement or when a company seeks to acquire the rights to a patent. A validity opinion is usually requested by a client who is concerned about infringing a particular patent and wants an opinion on the validity and enforceability of that patent.  A validity opinion may also be requested by a patent holder that is considering a lawsuit against an infringer.  The patent holder may want assurance that its patent is valid and enforceable before taking on the costs of enforcing its patent.

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I am a licensed China lawyer. Most clients are foreign nationals and companies. China Lawyer Blog have associates in Beijing, Shanghai, Tianjin, Guangzhou, Suzhou, Nanjing, Qingdao, Fuzhou, Hainan, Hefei, Wuhan, Xian, Changsha, Xiamen and Hangzhou. Learn More

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China Lawyer BLog AuthorPeter Zhu, an experienced China attorney licensed to practice law for more than ten years, the author of this China Lawyer blog, welcomes any enquiry or consultation related to Chinese law.