Can’t-do-Call

Term used for the phone call made to a client by intellectual property counsel who, after assessing a patent with a view to drafting a Non-Liability Opinion, has concluded that such an opinion would be difficult or impossible for counsel to provide, because the counsel has concluded the client does, in fact, infringe. Since privilege may be waived in opinions, a written opinion stating that the client infringes is worse than useless (and indeed may be wrong). Clients are usually charged for the work resulting in the “can’t-do-call,” but the cost is usually considerably less than drafting a non-infringement opinion.