Freedom-to-Operate Search (“right-to-use” or “clearance” search) is a search used to determine whether or not you have freedom to make, use, and sell your invention.
Freedom-to-Operate is established when a patent has not been infringed or has otherwise expired.
When is Freedom-to-Operate Search Conducted?
The Freedom-to-Operate Search is usually conducted prior to bringing a new product to market.
You ( as an inventor) may want to avoid alleged infringement when making, using, or selling your invention. There are penalties, law suits and royalty payments as when the organizations infringe any patent with its product. This may turn out to be a very expensive affair and sometimes may even affect you/your organization’s reputation.
You also may reveal the existence of multiple patenting. In this event, one of the patents might be invalid because the existence of the other patent was not cited as prior art during a patentability search.
The Freedom-to-Operate Search may also be conducted before or after receiving your granted patent to establish where a potentially unexploited market exists. And, therefore, where the patent owner or applicant could manufacture, use, sell, or license the invention.
It may reveal, through non-patent literature, who else has been practicing your invention.
The Freedom-to-Operate search is usually broader than an infringement search. This is so because you also seek to determine where the technology may be used or protected around the world. And also, whether it may be used freely without allegations of infringement or the need for licensing.
The search usually accompanies a clearance opinion drafted by patent attorney or agent. That, in turn, forecasts the potential for infringement of an issued patent’s claims or those of a pending patent application.
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