One requirement for obtaining a patent is the novelty of the invention. An invention is considered to be new if it does not form part of the prior art and if it was not already in use nor in the public domain, prior to the date of filing of the patent application. It is not important where the invention became public. A search may therefore be useful in order to check the state of the art of an invention and in order to evaluate the possible success of a patent application.
It may be also advisable to carry out a search before starting the development of a product. The holder of an opposing title of protection may demand compensation and cease of the distribution or the offer of services related to the product.
A Freedom-to-Operate Analysis which is also known as Patent Clearing or Product Clearing, can avoid in advance litigations touching on the industrial property rights after a product’s introduction on the market. Such kind of disputes over titles of protection includes very often significant cost-related risks that make potential clients often feel uneasy and finally lead them to suppliers that are already established on the market. At the beginning of a Freedom-to-Operate Analysis a search is carried out for existing patents, patent applications and so called non-patent literature that opposes the invention. There is also the possibility to search for earlier state of the art, which may lead to the fact that a potential patent of a competitor that is extremely difficult to search is not legally valid. Such a state of the art document can be used as an objection in and out of court – in terms of an objection procedure or invalidity proceedings.
The higher the efforts and costs are the better the search results will be. It is important to mention that it is not possible to find all the relevant documents even if we carry out extensive searches that are broad in scope. This is why we always try to find a reasonable compromise between search costs and the remaining individual risks of undetected documents in accordance with your product and its future market environment.
We help you to determine the patentability of your invention and to evaluate your chances to obtain a patent by performing or instructing searches. We will support you in determining the scope of a reasonable Freedom-to-Operate Analysis and in carrying out the searches needed for that.
Companies that already have an existing intellectual property rights portfolio may profit from a patent-due-diligence analysis. In this evaluation we will carefully study the portfolio of your firm. A patent-due-diligence analysis will detect possible risks and deficiencies of a patent and a patent strategy so that we are able to elaborate e.g. a risk management system or to show you where you can improve your patent application strategy.
In general, we highly recommend performing such a patent-due-diligence analysis especially when you plan to take over a technology company. We will provide you with professionally assembled research data and patent analysis and will be happy to advise you on your individual needs.