We often receive new enquiries from start-up businesses to undertake a patent search in the belief that a search will identify an opportunity to obtain a patent and that it will also eliminate the risk of infringing someone else’s patent. This is only partially correct – a patent search will certainly identify the likelihood of obtaining a patent, but it will not identify any infringements that might occur. To do this you need a freedom to operate opinion.
For any investor or business owner a freedom to operate opinion is vital if the value of the business is to be preserved. A business that is involved in innovation of any kind could easily find the cost of research and development completely wasted if it is subsequently found that the innovation infringes existing patents.
For this reason it is important to see a freedom to operate opinion as an investment rather than a cost. Having one will not necessarily increase the value of a business, but lack of one will almost certainly result in an investor leveraging this omission to obtain a reduction in the potential value.
We carry out and commission freedom to operate searches for our clients who wish to identify valid IP rights of others which would create potential barriers to the commercialisation of their products, services or technologies. This work may involve assessing numerous IP rights across multiple jurisdictions and we can quickly assemble a team to complete complex projects on-time and on-budget. This assessment typically includes an infringement analysis and a review of the effect of prior art on the validity of relevant patents.
As can probably be appreciated this work also has a strategic value. For businesses operating in a crowded area of technology a patent attorney can provide detailed guidance on how something might be done differently to avoid infringement without undermining the overall aim of the innovation.