Advice of counsel

  1. Law
  2. USC 35
  3. Patents
  4. PATENTS AND PROTECTION OF PATENT RIGHTS
  5. REMEDIES FOR INFRINGEMENT OF PATENT, AND OTHER ACTIONS
  6. Advice of counsel

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§298. Advice of counsel

The failure of an infringer to obtain the advice of counsel with respect to any allegedly infringed patent, or the failure of the infringer to present such advice to the court or jury, may not be used to prove that the accused infringer willfully infringed the patent or that the infringer intended to induce infringement of the patent.

(Added Pub. L. 112–29, §17(a), Sept. 16, 2011, 125 Stat. 329 .)


Statutory Notes and Related Subsidiaries

Effective Date

Pub. L. 112–274, §1(a), Jan. 14, 2013, 126 Stat. 2456 , provided that: "Notwithstanding section 35 of the Leahy-Smith America Invents Act [Pub. L. 112–29] (35 U.S.C. 1 note), section 298 of title 35, United States Code, shall apply to any civil action commenced on or after the date of the enactment of this Act [Jan. 14, 2013]."

Except as otherwise provided in Pub. L. 112–29, section effective upon the expiration of the 1-year period beginning on Sept. 16, 2011, and applicable to any patent issued on or after that effective date, see section 35 of Pub. L. 112–29, set out as an Effective Date of 2011 Amendment note under section 1 of this title.


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