What is a Validity Opinion?
There are many ways that a patent can be invalidated, and the purpose of the validity opinion, or enforceability opinion, is to identify whether there are any strong arguments for invalidating a specific patent.
A validity opinion, or enforceability opinion, comes into play once you have determined that you might be infringing someone else’s patent. This could come following a clearance search, or it could be necessary if you have received a cease-and-desist letter. It is also standard to render this opinion during patent infringement litigation.
This opinion involves reviewing the full USPTO file history of the patent that is being investigated, as well as reviewing the content of any prior art cited against that patent by the patent examiner. In an effort to locate arguments for invalidating a patent, a separate patentability search can be done to possibly locate prior art that was never considered by the patent examiner before the patent was issued.
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