Dear Patenticity: Freedom to Operate

Buckingham, Doolittle & Burroughs, LLC

Buckingham, Doolittle & Burroughs, LLC

Dear Patenticity,

I am starting a new business around a technology that I hope to patent.  We have already conducted a patentability search and we think we can get a patent.  At what point should I address freedom to operate?



Dear FTOptimist,

I’m glad you’re confident about your technology, but don’t get ahead of yourself.  Freedom to operate determines whether you can go into business at all.  You need to address it early and often.  By early, I mean before even writing your business plan.  By often, I mean at the beginning of the design stage, periodically throughout product design, and once more just before product launch.  Remember, whenever you have a creative solution to a product design problem you have to consider the possibility that someone else may have already had the same idea and patented it.

The results of a good FTO search will help you to understand whether there is meaningful whitespace for you to operate in, whether you need to rethink your design to get around the competition’s patents, or whether a license-in or strategic partnership might be the right entry point.  Careful planning and cooperation with your patent counsel will help you keep costs in check.  FTO is not cheap, but it is much less expensive than having to pull your product from the market to avoid a lawsuit.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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Buckingham, Doolittle & Burroughs, LLC

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