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Freedom to Operate

The patents of the competitors. Expert article by Dr. Frank Feller, Weickmann & Weickmann.

Successful technology or life science startups are almost always based on innovations. Patents can effectively protect ideas against imitation, so that in the best case a monopolistic position can be achieved on the market and the technological lead can be secured for years. But what happens if the company's new developments interfere with patents held by other market players?

The threat of patent infringement could directly endanger the market entry and the business basis of the startup. Against this background, innovative young companies should not only strive for their own patents, but also deal with the topic of Freedom to Operate (FTO) at an early stage. For this purpose, the online databases of the patent offices (e.g. German Patent and Trademark Office: depatisnet.dpma.de; or European Patent Office: worldwide.espacenet.com) can be searched on the basis of suitable criteria and patents and patent applications in force can be identified. Due to the large number of patent documents, it is advisable to limit the search to the last 20 years and to search specifically for patent publications of known competitors. A patent attorney or a search service provider can help with the search, the evaluation or the risk analysis.

It should be kept in mind that FTO analyses can bring a certain degree of clarity to the patent landscape, depending on the search effort or budget used. But: even the most elaborate and precise searches cannot provide any assurance that the planned products and processes are free of patent risks. On the one hand, this is because the volume of published patent literature is simply too large for a complete review of all documents. On the other hand, new patent applications are initially kept secret by the patent offices for 18 months and can only be searched thereafter. The remaining risk is one of the many imponderables and challenges that startups have to face on their way to success.

Contact

Patent Attorney and Partner at Weickmann & Weickmann

Dr. Frank Feller

frank@weickmann.de

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