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Invalidity Opinions in Patent Litigation: Shielding Against Liability

Reducing Exposure to Enhanced Damages, Attorney-Client Privilege Implications

Recording of a 90-minute premium CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Tuesday, November 7, 2023

Recorded event now available

or call 1-800-926-7926

This CLE course will provide patent counsel with guidance on using invalidity opinions in defense of patent infringement claims. The panel will discuss the issue of waiver of the attorney-client privilege and other factors when considering invalidity opinions. The panel will provide best practices for obtaining and using invalidity opinions.


Recent decisions have changed the landscape and renewed awareness of an invalidity opinion's role in patent litigation. Obtaining an invalidity opinion and examining infringement risks can protect an accused infringer from a willful infringement finding and significant damages.

However, obtaining and utilizing invalidity opinions is not without its risks. The alleged infringer should consider the timing and the potential steps that an invalidity opinion could trigger. Further, a price for using an invalidity opinion could be a waiver of attorney-client privilege.

Listen as our authoritative panel of patent attorneys examines the use of invalidity opinions and the considerations counsel must address when drafting an invalidity opinion. The panel will also offer best practices for using invalidity opinions.



  1. Use of invalidity opinions
  2. Drafting invalidity opinions
    1. Key considerations
    2. Privilege implications
  3. Recent cases
  4. Best practices for obtaining and using invalidity opinions
    1. Timing
    2. Triggers
    3. Attorney-client privilege


The panel will review these and other noteworthy issues:

  • What are the benefits of obtaining invalidity opinions? What are the risks?
  • How have courts addressed invalidity defenses?
  • Under what circumstances should invalidity opinions be sought to protect from infringement claims and enhanced damages?


Del Monaco, Anthony
Anthony D. Del Monaco

Finnegan Henderson Farabow Garrett & Dunner

Mr. Del Monaco focuses his practice on patent litigation. His experience ranges from consulting with clients regarding...  |  Read More

O'Brien, Charles
Charles F. O'Brien

Partner; Chair of the IP Transaction Practice
Cantor Colburn

Mr. O'Brien concentrates his transactional practice on the exploitation, transfer and licensing of technology. He...  |  Read More

Weisbruch, April
April E. Weisbruch

McDermott Will & Emery

Ms. Weisbruch focuses her practice on intellectual property matters, particularly in managing large-scale IP litigation...  |  Read More

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