• Modifying your invention . You may consider altering your invention's design, process, or components to avoid infringing issued claims. This might require design adjustments or changes to your approach. • Licensing existing patents . You can negotiate licenses with identified patent holders, allowing you to use their technology while paying a fee or royalty. • Challenging the validity of the existing patent . If you believe a patent is invalid or wrongly granted, you can challenge its validity. • Abandoning your idea . In some very rare cases, if the risks are too high and there is no viable way to modify the invention, it might be best to abandon the idea. Regardless of any potential infringement risk, if your invention has unique and non-obvious features that differentiate it from the full disclosure of those existing patents, you might still be able to obtain a patent for your idea. Patentability and freedom to operate are two separate analyses which do not necessarily overlap. Q How much does an FTO analysis cost? A The cost of an FTO analysis can vary based on factors such as the complexity of your invention and the number of potentially relevant patents (the crowdedness of the field). While there are costs associated with an FTO analysis, it's a prudent investment compared to the potential expenses of unexpected legal disputes. Based on the results of the analysis, an IP lawyer can suggest specific strategies to mitigate risks of costly legal disputes. For example, even if there are potential infringement concerns, a lawyer can help negotiate licensing agreements with patent holders, allowing you to legally use their technology.
Q What could happen if I proceed without conducting an FTO analysis? A Proceeding without an FTO analysis can expose you to legal risks. If your invention is found to infringe upon existing intellectual property rights, you could face legal action that may lead to expensive litigation, damages, and injunctions. Other risks include wasted resources from developing and marketing an investment; reputational damage that can erode trust among partners, customers, and investors; and loss of market share to competitors when a business is forced to halt production or sales due to infringement issues. Q Is an FTO analysis a one-time thing? A While an FTO analysis significantly reduces the risk of being involved in legal action, it can't offer absolute certainty that you won’t face disputes in the future. At any point after the FTO analysis is performed, new patents could be granted, or previously overlooked patents could come to light. However, a well-conducted analysis greatly improves your understanding of potential risks and ability to spot additional risks in the future. As technology advances and the intellectual property landscape evolves, periodic updates to your FTO analysis are advisable. If you make significant changes to your invention or its features, you should consider performing a new FTO analysis to capture such features.
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IP ESSENTIALS: FREEDOM TO OPERATE (FTO)
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