Freedom to Operate: A Mediator in the Field of Intellectual Property Rights
The current world is an environment packed with innovative and business aspects at every corner of it and therefore understand the legal notions behind it becomes essential. It is very clear from law that the punishment comes into the scene only when there is an infringement of a right of someone. When it comes into a business world especially when it’s linked to their intellectual property rights, it’s about ensuring that they are not infringing on the rights of others while implementing their own patent rights. But then the question that arises is, how this is supposed to be tackled when there are thousands of patents applications that are filed around the world. For the same there is concept of “Freedom to Operate” that comes into play. FTO refers to the ability of a company to conduct its business activities, such as developing, manufacturing, and marketing products, without infringing on the patent rights of others.
The legal term Freedom to Operate (FTO) describes the capacity to carry out business operations without violating the intellectual property rights of third parties. When it comes to patents it means being able to operate freely without infringing on the rights of third parties or existing patents. In essence the FTO makes sure that a business goods and services don’t violate the patents of other individuals or businesses.
The reason FTO is significant is that it informs innovators to the possibility of infringement of the intellectual property rights of another person. Since patent infringement can have serious repercussions an FTO search is necessary for a product or service to be commercialized successfully. Without freedom to operate a competitor who owns patents may block or otherwise restrict a commercialization strategy causing substantial losses to company resources and harm to the company’s reputation if commercialization is already under way. By guaranteeing the freedom to introduce a good or service in a particular market without infringing on the patent rights of others, obtaining FTO clearance can help prevent expensive legal disputes and possible infringement lawsuits.
While all of this being said, it should be noted that FTO and Patentability are two distinct concepts. Patentability in the right given to the patent holder for introducing a product based on novelty, usefulness and non-obviousness of that invention while FTO is about the freedom that one holds to operate on or with that product in a commercial manner without infringing the existing patent. In simple terms it can be said that just because an invention is patent would not guarantee that it carries FTO. A product can be patentable yet still infringe on other patents, highlighting the need for a freedom to operate opinion.
For example, if there is a new innovative design for the fan that was thought through and for the same there was a patent that was recognised but there are chances that the patent holder of the fan himself cannot use the design for any commercial purpose since the working of the fan has been patented by someone else and thereby requesting for his permission would be a mandate. This is actually one of the reasons why patents are referred to as “swords” rather than “shields”.
The process of freedom to operate generally involves searching for issued or pending patents, industry-specific publications, and other relevant published materials which may reveal the potential patent rights of others. The best way to get this process completed is by getting in contact with an experienced IP professional who will ensure that all of the essential requirements are fulfilled while also guiding you through.
Once the IP attorney has been approached, they will get into analysing the FTO search results. As a part of the analysis they will see if any of the rights that is involved with the invention will be posing any potential risk of infringement. If the attorney finds that there is FTO with respect to the plan then it is up to the company whether to operate and protect their innovation with patenting or no. But if the attorneys finds that there is some issue with FTO then the companies will have to reconsider the plan and maybe opt for patent purchases, licensing, or cross-licensing as alternatives.
To maximize freedom to operate, businesses can consider several strategies:
- Thorough Patent Search: During the time of Research over the invention, at that point of time itself there should be a thorough go through for assessing whether there has been patent registered for any part of the invention used and thereby take actions for the same.
- Patent Protection: If at all there isn’t any barricade on patenting the invention then as soon as possible the invention needs to be patented.
- Licensing/ Cross Licensing/Patent Purchase: There are times wherein the patent of the existing product/service will be available for licensing/cross licensing/ purchasing the patent. In that case, use the license/cross license/ purchase the patent so that your own product/service can be commercialised.
If at all it is noticed that the FTO has been neglected, then this can result in infringement and thereby a lawsuit against the same from the patent holder. Commercialising any of the product or service won’t be possible if there isn’t any freedom to operate. This intern can affect the business a lot, even in terms of their reputation, especially if it’s a company new in the market.
As seen from above it can be evidently said that the “Freedom to Operate” is essential especially in the field of intellectual property rights. This is a concept that allows a midway through the process of patent wherein just through a simple process of licensing or cross licensing the operating mechanism can come into motion. The business world is developing as time goes by and therefore and understanding nature between all of the businesses is required so that the implementation of their own invention and innovation is conduct in an apt manner. Law has been about respecting boundaries and this can be considered to be solution for that same in the field of intellectual property rights.
