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Check Your Freedom to Operate Before Launching a Product

Tue Nov 16th, 2021 by  Patents

Let’s say that you’ve developed what you think is a great new product. You’ve been keeping an eye on industry trends and positioning yourself for success for your next big launch. Your R&D department has spent countless hours and resources developing, testing, and refining the product, and has finally produced an ideal embodiment. And, even better, you have a pending patent application on it or even an issued patent. You’re ready to hit the market, right? Not so fast. Before launching a product, you still need to ensure that you have the freedom to operate, which an Alabama patent search attorney can help you to determine. 

What Is Freedom to Operate? 

Patent rights are negative rights. They do not confer upon the holder the right to make, sell, or use the invention described therein, but, rather, the right to exclude others from making, selling, or using said invention. As such, owning a patent on a particular aspect of a product does not mean that you can sell the product because someone else may own a patent on a different aspect of that product. For example, let’s say that you’ve invented a brand new kind of pencil eraser that has never been seen before. You likely would be safe selling the eraser by itself. However, if you attached the eraser to the end of a pencil that was covered by a third-party patent and began selling it, you could expose yourself to infringement liability.

Options for Clearing Obstacles 

When conducting a freedom to operate analysis, your attorney will search for patents that are relevant to your product and identify the ones that pose a high risk of litigation. You and your attorney can then work together to come up with strategies to overcome any obstacles you identify. This can include: 

  • Buying or licensing the identified patent
  • Cross licensing the identified patent and your patent
  • Designing around the identified patent
  • Attempting to invalidate the patent through inter partes review (IPR)

In some cases, even if your attorney identifies a high-risk patent, he or she may then perform an infringement analysis to dig deeper into the issue of whether your activities would actually infringe the patent. 

When Should You Obtain a Freedom to Operate Analysis? 

You should begin the freedom to operate analysis process as early as possible in your product life cycle to avoid situations like the ones above. You don’t want to invest the time and resources to develop a product only to discover that it is dead in the water just prior to launch. Ideally, you should keep your IP attorney apprised of your product road map and the technologies you are working with, as well as how they are evolving. Keeping your IP attorney in the loop can not only help with harvesting your IP but can also prevent costly mishaps in the future. 

Contact an Alabama Patent Search Attorney 

For more information about freedom to operate or any other IP-related issue you may be facing, please contact an Alabama patent search attorney at AdamsIP by calling 251-289-9787 or by using our online contact form. We have offices in Huntsville and Birmingham.