Freedom to operate searches – will I be sued by someone?

Remember that it may be possible that someone else has filed for protection first. While it’s quite easy these days to find existing patents, there is always a “dark window” when patent applications have been filed but not yet published. There’s an 18 month gap between the filing of a priority application and (if a complete application has been filed), the publishing of the patent document. So, before exploiting your invention in any country, you should conduct a search (or have one conducted on your behalf by a patent attorney) through the records of each such country as well, to ensure that that there aren’t any patents filed by others that could inadvertently get you sued for infringement (i.e. when using another company’ patented invention without their consent). Remember also that any patents that you locate in your local infringement search may also be detrimental to the novelty of your invention.


How is a freedom to operate search done?

Infringement searches are limited to patent applications filed within the past 20 years, as any patents filed before that time will have expired. In addition, remember that patentees, once the patent has been granted, must pay annual renewal fees to keep their patent active (or ‘in force’). If a patent has lapsed, it cannot be reinstated, except under very specific conditions (usually if it can be shown that the patent lapsed due to no fault of the patentee), so that should also be taken into consideration.

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