Law360, New York ( April 20, 2016, 11:45 AM EDT) -- In patent infringement jury trials, a defendant's failure to obtain an opinion of counsel despite having knowledge of a patent is often powerful evidence. A plaintiff can potentially use the absence of an opinion to support its positions on infringement, willfulness, validity, damages and other issues. Though it has received little attention, the America Invents Act includes a provision — 35 U.S.C. § 298 — that seeks to limit the use of the absence of such an opinion to prove willful infringement and inducement. Nearly five years after the provision's enactment, the published trial court and Federal Circuit opinions addressing Section 298 reveal differing applications of the statute, and lingering uncertainty about how it will impact the admissibility of evidence at trial....