It can be very advantageous for a potential defendant to obtain an opinion of non-infringement or invalidity before the plaintiff files a lawsuit.

The value of a pre-suit opinion has diminished slightly with recent case law that removed the presumption that the failure to obtain a pre-suit opinion indicated that infringement was willful. However, a pre-suit opinion of non-infringement by a competent patent attorney can be the basis for a finding that infringement was not willful, which can defeat a claim for enhanced damages.

Another advantage to obtaining a pre-suit opinion is that your attorney will have more time to fully develop his or her defense should you be sued.