Filing a patent application and obtaining a patent grant feels like a monumental achievement. You’ve innovated, documented, and navigated the complex patent process. Congratulations! But here’s a crucial reality check: a granted patent doesn’t automatically grant you the right to practice your invention.

Many entrepreneurs, startups, and even established companies fall into the trap of believing that a patent is a ultimate ticket to commercial success. They assume that their granted patent guarantees the right to manufacture, sell, and distribute their product without legal hurdles. This misconception can lead to costly legal battles and significant business setbacks.

What’s the Difference? Patent Grant vs. Freedom to Operate

• Patent Grant: A patent grants you the right to exclude others from making, using, selling, or importing your invention within the jurisdiction of the patent. It’s a defensive tool, protecting your invention from being copied.
• Freedom to Operate (FTO): FTO is the assurance that your commercial activities won’t infringe upon the valid patent rights of others. It’s a proactive analysis that assesses potential infringement risks and ensures you can operate without legal challenges.

Let’s take an analogy: You might have a patent for a new type of wheel. But if another company holds a patent for the axle design that your wheel requires, you can’t sell your wheel without potentially infringing on their patent.

What Does The Indian Patent Act Say?

The Indian Patents Act, 1970, provides a comprehensive legal framework for patents in India. Section 48 of the Act outlines the rights of patentees, stating that a patent grants the exclusive right to prevent third parties from making, using, offering for sale, selling, or importing the patented product or process without consent. ^[1] It does not provide an affirmative right to practice the invention.

This means that even if you have a patent, you must still ensure that your product or process doesn’t infringe on other existing patents.

Why is FTO Crucial?

• Risk Mitigation: FTO analysis identifies potential infringement risks early on, and allow you to plan strategies to avoid legal disputes.
• Business Planning: It enables you to make informed decisions about product development, manufacturing, and marketing.
• Investor Confidence: FTO analysis demonstrate a commitment to minimizing legal risks, thus boosting Investors’ confidence.
• Avoiding Litigation: FTO helps you avoid these costly infringement litigation battles.
• Market Clarity: FTO analysis gives clarity on the landscape of existing patents, helping you to understand the competitive environment.

In Conclusion:

Getting a patent is exciting! But it doesn’t mean you can automatically sell your product. You also need to make sure you’re not accidentally using someone else’s patented ideas. That’s where “Freedom to Operate” comes in. Doing a careful FTO check helps you avoid legal problems and makes sure your business can grow safely. A patent is great, but FTO is what lets you actually use it to build a successful business.

#patents #innovation #IP #FreedomToOperate #IndianPatentsAct #IntellectualProperty #Startups #BusinessStrategy

 
Citations:   ^[1] s 48, Indian Patent Act, 1970.