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A finding of liability for direct patent infringement in the U.S. is typically based on the infringing actions of a single entity, either a natural or legal person. However, under the doctrine of "divided infringement" (sometimes referred to as "joint infringement"), a single entity can perform fewer than every step of a patented method or make use of fewer than every element of a patented system and still be liable for direct infringement.
Though there is no longer an affirmative duty to seek the opinion of U.S. patent counsel after being put on notice of possible infringement of a U.S. patent (35 U.S.C. § 298), a written opinion of counsel regarding non-infringement/invalidity can still be helpful, not only for purposes of risk assessment but also as a means to limit damages/avoid liability in the event of litigation and provide leverage during licensing or other negotiations.
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