IP Tech Knowledgy

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A Freedom to Operate Analysis Provides Comfort That a Patent Does Not Grant

In registering a patent, the owner obtains only the right to stop others from making, selling, using or importing the invention. The patent does not actually grant the owner the affirmative right to make, sell, use or import its own creation. A recommended step for the patent owner to have comfort that it can commercialize its invention is to receive a freedom to operate (FTO) analysis. An FTO analysis includes searching for relevant issued patents and evaluating whether any of the relevant patents pose an infringement risk. Although a lawyer cannot give an absolute guarantee of freedom to operate, the owner can use the FTO’s risk assessment to help identify when it is necessary to navigate potential paths around a third party’s patent to minimize litigation risks. An FTO analysis also minimizes potential investors’ concerns about commercializing a patent owner’s invention. Because patents are granted to new devices and methods that may be based on pre-existing technology, without the FTO analysis, a patent owner may unwittingly infringe on a third party’s patent by making, selling, using or importing its own invention. 

Kimberly N. McLean
410-576-4192 • kmclean@gfrlaw.com