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Details about Freedom to Operate Design Patent and Utility Patent

By Edited Nov 13, 2013 0 0

Freedom to operate (FTO) search is also known as 'Freedom to practice' (FTP) or 'Product clearance' search.

 

As the name suggests, it is understood that a freedom to operate is the option or the right that makes you free from all legal obstacles to commercialize your product or process it in a particular country or geographical region.

 

Legal obstacles for your product or process could primarily be valid patents, designs and (or) trademark rights. However, any other IP rights based on a particular jurisdiction (country or region) should NOT be overlooked. For example many countries in the world are NOT a member of The International Union for the Protection of New Varieties of Plants (UPOV) yet.

 

Intellectual property rights are limited to particular jurisdictions (countries or regions). No such system exists that can have a single IP protection for one invention throughout the world with a single legal action. Certainly, we know that national laws differ in different jurisdictions.

 

Hence before thinking of commercializing a product or a process in a particular jurisdiction, it is vital to verify the patent rights which cover the technological aspects of the product or process as well as the designs and trademarks associated.

 

Claims are the portion of the patent that defines the scope of the invention or protection. Often the patent claims are understood by considering the specifications including the drawings. Hence needless to say, interpretation of patent claims requires considerable skills and experience.

 

When a patent is issued in a country or region that claims the elements of your product or process and you wish to commercialize your product in that country or region, you have many options to verify and adopt.

 

  • Term of issued patent: An issued utility patent remains active for 20 years from the date of filing (consider the patent term adjustments made that increases the patent life beyond 20 years period). Claims in an expired patent are in the public domain and your product is free to operate based on those features. Design patents stay live for 14 years from date of issue.

  • Maintenance of issued patent: An issued utility patent may get expired before the 20 years period unless the maintenance fees are paid in time. In USPTO it is 3.5years, 7.5 years and 11.5 years from the date of the original patent grant. No maintenance fee is required for design patents.

 

  • Pending Applications: A pending application could be an obstacle as it has a chance to be converted into a patent. However, a close look at the prosecution of the application is required as the claims of an application may get changed to a great extent when it is issued compared to the published claims. Also there are chances that the application may get rejected by the patent office or abandoned or withdrawn by the applicant.

 

  • Multiple patents. Your product or process could be infringing multiple patents. Even some features of your product or process do not infringe any valid patent claims, other features could be infringing. So it is necessary to check all the steps in your process or the components in your product to make sure they are free to be used.

 

  • Get the patent license i.e. purchase the patent. Make an agreement with the patent owner to use the patented technology or protected invention for the specific claim elements, in specific markets and for a specific period of time. Based on the potential of the patent and the type of agreement made, the patent owner may deal for a one-time settlement or for a periodic royalty payment or both.

 

  • Cross-licensing. If you have a patent that partly covers your product or process features, but some other features are covered by another's patent, make an agreement with the other patent owner to grant a license to each other where both the parties can make use of the claimed components of one another.

 

  • Patent pools. This is an agreement among patent owners to cross-license a set of their patents to one another or to third parties, by which two or more entities working on interrelated technical domains can establish a pool of patent rights that any of them can use.

 

  • Design around. You may design around the patents that create obstacles. This could be possible by advancing your research or amending the product or process features to evade infringing others patents.

 

Our solid experience in freedom to operate and infringement search and analysis with the world leading databases and tools provide us an advantage to prepare a well informative report that gives a clear idea of whether your product or process is likely to infringe any active patents and (or) trademarks. We provide the status of the patents that helps you calculate the potential of the threats and the opportunities.


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