In order to obtain a patent, your product needs to be novel, inventive and have industrial application. However, the mere fact that you have a patent is no guarantee that you will not infringe on another manufacturer's patent. Even if it has been established by means of a novelty search that your invention does meet the requirements for a patent, you still need to take the rest of the market into account. To gain insight into that market, there is the Freedom to Operate search. We can best illustrate what this is and how it works by means of an example.
Preventing infringement
Suppose that manufacturer X has come up with the idea for a bicycle without a saddle and you subsequently develop a bicycle with a saddle. As this is novel and inventive, you will get a patent on the product. However, you are not allowed to simply start manufacturing your bicycle with a saddle. That is because you would then be infringing on the product of manufacturer X: the bicycle without a saddle.
Without manufacturer X, there would not be a bicycle, and therefore also no bicycle with a saddle. You are only allowed to sell your bicycle with a saddle if you reach an agreement about this with manufacturer X. You could, for example, purchase a licence for the bicycle without a saddle.
Insight into third party patent rights
With a Freedom to Operate search you will know exactly who makes bicycles without saddles. It makes it clear what the patent rights of others are, that could stand in your way. It is also good to know that not every patent right is an obstacle by definition. You may just be able to get on with your business plans. This depends on the following elements of an existing patent:
- Geographical scope of the patent
First of all, it is important in which country you want to sell the product. Suppose someone has established a patent in Germany, then there are possibly lots of other countries in which you can enter the market. - Patent validity
In addition, there are sometimes patents that are not, or no longer, valid, for example because the annual renewal fees have not been paid. In other cases, the patent may have been wrongly granted and is therefore not legally valid. In that case, too, there is nothing to stand in your way. If there is a valid patent in place, you could always investigate the possibilities of getting around this by adapting your product. You can prevent infringing on the patent by innovating around it.
Doing business safely thanks to Freedom to Operate
It should be noted that a Freedom to Operate search can never provide a 100% guarantee that you are not infringing. The search does, however, give a good indication of where you stand. You will know how and where you can market your product as strategically and safely as possible. This prevents annoying wrangles and potential high costs.
