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Freedom to Operate Studies for Foreign Companies Entering Indian Market- Patent Infringement

 Patent Freedom to Operate Cost

Patent Freedom to Operate (FTO) perspective from a patent attorney means that you have researched similar technology in the country and your product does not infringe the Intellectual Property

patent Freedom to Operate, clearance for technology for patents and innovation

Freedom to Operate cost for patent depend on many factors. Generally patents pertaining to inventions are not published before the expiry of  18 months of the first filing date of patent unless the patentee has filed for early publication request before the patent office for publishing the invention in the patent database. Patent freedom to operate clearance is very important for business before launching a technology in the market. From patent Freedom to Operate (FTO) perspective from a patent attorney means that you have researched similar technology in the country and your product does not infringe the Intellectual Property (IP) rights of others with reasonable certainty. Startups can never be 100% certain that “right to operate” for the product exist because patents are not published before the expiry of  18 months in general cases.

How to determine Patent Freedom to Operate Search

To determine patent freedom to operate search the foremost step in FTO is to conduct a Clearance Patent Search or Infringement Patent Search to identify close granted patents, along with the current legal status or pending patents. The patent data is analysed by the patent expert to determine whether a product or technology would infringe any granted patent. Small and mid-size companies hire patent research companies to perform patent freedom to operate search.

Patent Freedom to Operate Search is Country Specific

Geting patents for inventions in different countries is a costly affair. Therefore, if a technology for launch infringe a patent in countries like, Singapore, Canada and the USA, but that patent has not been filed in India and Malaysia then in this case anybody is free to use the technology in India and Malaysia.

Patent Freedom to Operate Search Determining Legal Status

Patents are granted protection for 20 years. Once that time period expires anyone is free to commercialise the technology. However, companies need to maintain those patents – by paying money to the patent authorities – and many lose enthusiasm for the invention well before those 20 years are up.

Patents are limited in scope
A patent document sets out “claims” for the invention. Any element of the technology not covered in the claims is not covered by the patent. What is covered by the claims can change during examination and from country to country. Most importantly, it is only the valid claims that are allowed after examination that define the monopoly – the claims published with a published patent application are almost always much broader that those in the published granted patent.
Some patents have exceptions
While patents may be current in a territory, there may an exemption that gives you freedom to operate for a specific use. Germany, for example, has an exemption for research.
What if you don’t have freedom to operate?
Imagine the gut-wrenching feeling if you perform this Clearance Search and find that you would infringe an existing patent? Don’t despair. You have options.
Invalidate the patent with Prior Art
The patent examiner who determines what scope of monopoly to grant to the patent applicant is a public servant who has limited Prior Art resources available to them. During examination the patent examiner typically only looks at earlier – and in most cases English language – published material such as: patents, a limited subset of scientific literature and other publications. However, the prior art is any publication or material available to the public – in any language – anywhere in the world. It could be a Chinese language article or a journal publication in Japanese language or that someone has sold the same product at an earlier date in Korea. By performing a Validity Search you may be able to invalidate the patent or have a good position for negotiating a license for the technology.
License the technology
Many companies take out patents with no intention of commercialising the technology themselves. They hope to make money by licensing the technology to others. This can be an option – but it can be expensive.
With the upsurge in patent applications, it is becoming increasingly common for companies to cross-license with others. This means that two companies come to a legal agreement entitling one another to use technologies for which the other holds a patent.
Invent an alternative
If a patent exists, you may need to invent an alternative way to achieve the same outcome. As they say, necessity is the mother of invention.
Prevention cheaper than the cure
Establishing Freedom to Operate should be an integral – early and ongoing – element in your product development cycle. It can help you avoid potentially crippling legal bills – or worse – and help you sleep better at night.
Contact Our FTO patent attorney today to determine your Freedom to Operate in India, United States or elsewhere.

Important Checklist for Market Entry Strategy in India

Our team of Indian Patent attorneys and researchers conduct IP due diligence, research and analysis on foreign technologies on behalf of our international clients who want to enter India. It is very important to get clearance search and freedom to operate in India before entering any product, device in Indian market. We at Tech Corp Legal LLP, help you determine whether your product infringes the patent rights of another company in India.
You will need to know what types of patents exist for your technology in India and what might prevent you from testing or marketing your products in Indian market. Performing Freedom to operate (FTO) patent search is an important checklist from Market Entry Strategy point of view.

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