Freedom to operate analysis seeks to assess the risk of infringing patent, trade mark or design rights held by others.
We are regularly called on to provide freedom to operate advice and our aim is always to provide commercially relevant advice which can be used to accurately assess risks and inform business decisions. Freedom to operate searches and opinions seek to assess whether it is possible for a business to sell a specific product or carry out a specific process, or to use a specific brand or design, without infringing the intellectual property rights of third parties. They usually relate to patents or trade marks and less frequently to designs or other IP rights.
Normally, a freedom to operate analysis will begin with a search for relevant third party rights (patents, trade marks or designs) in specific countries. We usually commission appropriate searches taking into account our clients’ priorities and budgets and we then provide an initial assessment of the results, categorizing and commenting on risks. Where required, a freedom to operate analysis may include a further step of preparing detailed opinions concerning specific issues (or obtaining these from our associates in other countries as required) or assisting our clients in avoiding third party rights or, where appropriate, to seek licenses or consents.
It is advisable to think carefully about when to carry out freedom to operate analysis – to soon and the conclusions may be out of date or obsolete by the time a product or service reaches the market – too late and opportunities to avoid problems may have been loss. There are other issues which affect the timing and scope of freedom to operate analysis and we are happy to discuss these as required.