Risks withoutFreedom-to-operate analyses
Companies not only protect their own products by means of corresponding property rights, they must also observe the property rights of their competitors. If they ignore property rights or fail to inform themselves about them, they may be held liable for omission, damages, etc. due to intent or negligence. This includes the technical property rights of patents and utility models as well as the non-technical property rights of trademarks and designs.
Implementation of freedom-to-operate analyses in product development
Ideally, therefore, companies should inform themselves about the relevant property rights of competitors in this market and thus about the limits of their own freedom to operate, e.g. by means of a search for existing third-party property rights, before the start of product development, but at the latest before the market launch of a new product.
If relevant property rights are known or have been researched, the scope of protection of the relevant property rights should also be assessed in relation to the planned development or the product to be launched in order to be able to steer the development in one direction or make changes to the product so that an infringement of property rights can be avoided in good time.
Strategic benefits of freedom-to-operate analyses in practice
These efforts pay off very quickly, especially in the development phase, as this is when the greatest influence on the direction of the future product can be exerted with the least effort. However, even in the case of market-ready products, it is worth taking a separate look at the property rights situation, as patent infringements are often associated with disputes between competitors, which not only lead to liability for damages but can also damage the reputation of the infringing company in the public eye.