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Freedom to Operate

A company's freedom to operate and then to commercialise is vital to success. Owning pending or even granted patent rights is no insurance as a patent, design or trade mark right only provides a negative right to stop others, not a right to operate or commercialise.

Searches and reviews of potential third party blocks must be undertaken if the investment in developing a technology and its associated intellectual property is to be able to realise a return without a threat of infringement and possibility of an injunction preventing sales. If a company intends to license its technology, it is just as important to identify a clear path to market; a development partner is far less likely to entertain a late-stage deal at high value if it identifies potential third party threats that were not known to the company.

These searches should identify any third party patents that might be infringed by the marketing of a product, technology or service. The searches should cover the key markets and should be undertaken using comprehensive databases. Any patents identified should be reviewed carefully by a patent attorney to determine the risk of infringement.

If a patent is valid, it may be challengeable and failing that a licence may be required if available or the product re-worked to avoid infringement. However, it may be necessary to terminate the project before further investment is made.

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