Freedom to operate

With the development of a product or process major costs are involved. Therefore, when you are developing a new product or process, it is important to know whether it is already, partly or entirely, protected by third parties’ patent rights. Nederlandsch Octrooibureau can be of assistance to you by conducting a so-called ‘Freedom to operate’ (FTO) investigation.

A ‘Freedom to operate’ investigation provides insight into the possibilities of marketing a product or applying a process without infringing a third party’s patent. Release is also referred to as the ‘Freedom To Operate’ (FTO).

Patent owner’s rights

The patent right protects inventions such as products and processes. A patented product allows the patent owner to forbid others from manufacturing, selling, renting or stocking the product. A patent on a product gives the patent owner the right to forbid others from manufacturing, selling, renting or stocking the product. A patent on a process gives the patent owner the right to forbid others from applying the working method. By conducting a freedom to operate investigation you can limit the risk of having to withdraw a product from the market or having to discontinue a production line due to infringement of a third party’s patent.

Relevant patents

In a freedom to operate investigation, first of all the existence of patents that the product or the process is potentially infringing is investigated. Also, for an essential part or component of the product or process, patents may exist that will prevent the application of that part or component of the product or process. Perhaps it is already known in which countries the product is going to be on the market  or the process is going to be applied. In that case, given the fact that patents are national rights, the investigation can be restricted to these countries.

Claims and description

The claims of a patent determine the protection that the patent provides. Claims usually define products or processes in very broad terms. In order to give an explanation of the claims, a patent also includes a description of the invention concerned.

In the freedom to operate investigation careful attention is paid to the interpretation of the claims. Therefore, a careful study of both the claims and the description of the patent is necessary. In order to infringe a third party’s patent claim, a product or process must meet each element of that claim. If this is not the case, probably there is no infringement.

Advice

A freedom to operate investigation is a complicated process. A product or process usually has many details, the investigation must be as complete and accurate as possible, and the patent literature is very extensive. The outcome of the freedom to operate investigation is an advice that provides an overview of relevant patents. The advice will give an assessment of the chances that the product or process infringes third parties’ patents. In case of potential infringement, the solution may be to adjust the product or process. Another possibility could be to obtain a licence for the technology of the relevant patent. Again, Nederlandsch Octrooibureau will be pleased to advise and assist you.