What is the difference between freedom to operate and clearance?
Minneapolis patent attorney Tim Grathwol describes the differences between freedom to operate and clearance.
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A clearance vs. the freedom to operate – I mean, I think that those terms are somewhat interchangeable. The basic idea is that you have a product that you’re about to release, or you’re thinking about developing, even; you may be very early in the process, and you want to check to see if there are any competitive patent rights out there that might inhibit your ability to practice that technology. Again, patents are the right to exclude, so competitors can exclude you from doing certain things as well. So, a clearance or freedom to operate – generally the idea is that you analyze issued patents that are not owned by you and that have claims that cover certain technological features. And you look at your product, and you say, “Does our product have any of these features? Does it in any way potentially infringe these competitive products, such that if we produce the product and sold it, this competitor; this owner of this patent could sue us for infringement?”
And so, a freedom to operate study is a large study where we look at basically an entire product, which has a lot of different components and characteristics. And we generate a landscape or a set of – we identify a set of – excuse me; a set of patents, issued patents that are potentially enforceable against that product, and then analyze the claims of each patent against the features of the product to determine if there’s any issues with respect to the product. And if there are issues, you can identify them early in the process. You can design around them, or you can take other measures. I think technically they’re used in two different contexts, but the idea; the basic idea is the same.