The ongoing pandemic has wreaked uncertainty for many businesses. Forecasting expenses and costs, especially in the research and development areas, has become more difficult. In the intellectual property world, opinions of counsel on patentability, infringement, clearance and validity are often overlooked as tools to control budgets and forecast spending. While each of these opinions will necessarily require upfront costs, the information they provide often yields tangible cost savings resulting from a more focused research and development effort. This article explores some common scenarios where these opinions are useful, and analyzes their benefits and drawbacks.
Patentability opinions are typically rendered when there is a new product in development. Patentability opinions regarding a field for new product development are frequently referred to as landscape opinions. In any case, the purpose is to determine the potential patentability and whether someone else has made an earlier disclosure or secured a patent covering the invention. Patentability opinions typically include two core aspects: a prior art search, and an opinion regarding whether a proposed invention is patentable based on the results of the prior art search.