Top 5 freedom to operate tips
Here’s a quick list of top 5 (patent) freedom to operate tips – what would you add?
1. Think globally – patent claims will be subtley different in each country, and (even when identical), construed differently as well.
2. Don’t forget non-literal infringement (purposive construction, doctrine of equivalents, etc)
3. Don’t assume anything – go and check and recheck the search strategy and results, the patent families, the claims, the status, the file history (in countries where it matters), etc
4. Invalidity is good, but non-infringement is better, so be prepared to rework your product or service if it gives you an additional non-infringement argument (depending always, of course on how substantive a block the patent is likely to be, cost to make amendments, strength of the validity case, etc).
5. For small entities with little cash – use your PCT international type search report as a first pass at your freedom to operate. (Craft the claims in your own application with this in mind.)