A Matter of Opinion: Opinions of Counsel Remain Necessary After In re Seagate

摘要

District court decisions have evidenced confusion on whether a jury may consider the lack of an opinion of counsel post-Seagate. Thus, an environment where opinion letters are viewed as necessary to defend against willfulness remains. Consequentially, white-wash opinions still permeate the patent industry. The Seagate court had a worthy goal of re-establishing the credibility and utility of an opinion of counsel. Broadcom, however, has hindered progress toward Seagate's goal because of its reliance upon DSU. As an en bane decision, Seagate should carry significantly more weight in guiding the district courts. The simplest, most direct route to implementing the intent behind the Seagate opinion is widespread adoption of the Northern District of California model jury instructions, which embody the policy underlying Seagate.