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Freedom to Operate Opinion

Before bringing a new product or process to market, many businesses want to know of the potential risks that making, using or selling such new product or process may have associated with it. The probability of infringing on the patent rights of another is one such issue that many prudent businesses address before investing significant resources and funds into developing a new product or process.

A freedom-to-operate opinion or analysis is an evaluation of whether a product or process infringes the patent of another. A freedom-to-operate opinion can be used to assess the risk of infringing on a patent of another before entering into a market with a new product or process. The freedom-to-operate opinion can help businesses answer questions such as: Will I infringe a patent of another? What patents will affect my ability to profitably sell my invention? Do I have to license another’s technology? What are my risks with moving forward with my new product or process?

A freedom-to-operate opinion or analysis includes identifying any patents or patent publications that may subject a business to patent infringement liability if a new product or process is brought to market. By having a freedom-to-operate analysis completed before or during the beginning stages of product or process development, a business may effectively determine a level of risk, design around existing patents or patent applications to avoid patent infringement, or develop strategic business partners through licensing or assignment agreements.

A freedom-to-operate opinion begins with an assessment of a product or process that a business desires to bring to the market. A patent attorney will analyze a product or process to determine the components of the product or process. After the components of the product or process are identified and understood, a search will then be conducted to find patents and patent applications that are related to the product or process. After potential related patents and patent applications are identified by the search, then an experienced patent attorney will analyze the patents and patent applications to determine what patents and patent applications pose a risk. For example, a freedom-to-operate opinion or analysis may include an evaluation of: which patents are in the public domain and provide a safe harbor for the product or process; if the claims of a patent or patent application are invalid; and, if a patent or patent applications’ claims are infringed upon by the new product or process.

It is also important to understand that a freedom-to-operate opinion or analysis can never guarantee that a business will not be sued. This is because patent applications by others may be on file but unpublished at the time of the search and therefore not considered as part of the analysis. Additionally, the filing of a lawsuit by another party in some cases is uncontrollable. However, having an experienced patent attorney perform a freedom-to-operate analysis does significantly reduce the unknown risk to a business.

Given the geographical proximity of South Florida to Latin American countries, many Latin American businesses are beginning to look at South Florida as a destination for their businesses expansion. This includes brining new products and processes to the United States market. As a result, Latin American businesses have turned to the attorneys at Plus IP to provide freedom to operate opinions and evaluations. The attorneys at Plus IP are available to discuss questions you might have regarding freedom-to-operate opinions to assist your business access its risk.

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