Freedom to operate is something that can be very expensive to analyze in the sense that there are a lot of patents that have been filed over the years. In order to determine whether you have freedom to operate you have to look at the product, look at what the features are of the product, and then analyze, you know do a bunch of patent searching to see what patents are out there that are still in force that might cover hose features.

And so that’s quite a bit of searching that a patent attorney has to do to figure out what the relevant patents that are out there. Then you have to read and interpret the claims of the patents and see if they apply to the product that you’re about to sell in the market place. So it can be very detailed there could be hundreds of patents that have to be analyzed that come out of the search. Typically, there’s 10-12, you know the dirty dozen patents that are really kind of close that you really have to look at pretty closely in terms of the claims to see if there’s an issue or not and that can be a very expensive analysis.

The important thing is that you shouldn’t skip that part of the analysis and the earlier in the product design process that you can do the analysis the more money that you can save. As far as the reasons for doing the analysis there is the question of patent infringement and willful infringement if you actually are aware of patents that might be infringed and you continue to sell the product out of the market place. You can get liable for ____ damages for willful patent infringement. But when I talk to clients as to why they’re interested in doing the FTO process, the freedom to operate analysis and doing it early in their product design process is the real fear is committing a lot of R&D resources into a product that ultimately they just can’t sell out in the market place. So the earlier you can do the FTO process, the better off you are. On the other hand, the product design has to be mature enough for you to be able to identify features that you can compare against patents to see what may or may not come into play.

So it’s a little bit of a chicken and the egg kind of thing in terms of when you do the freedom to operate process. WE have some tools that can create sort of a living freedom to operate map that can, you know so you can create a map very early on in the design process and you can use that throughout the design process to guide the design choices. To pick design choices that are good not only from a business and technical standpoint but also from a legal standpoint. To pick choices that are least likely to cause you problems when you actually sell your product out on the market place.