As a founder, you can begin evaluating freedom to operate with a free search on Google Patents for patents covering all aspects of your business plan. Use Boolean queries to search for keywords, inventors, assignees (competing companies), and patents citing seminal references. If you discover something relevant, you should consult a patent attorney for advice on whether the patent has claims that are valid and enforceable.
Your attorney can also interpret claim terms from a legal perspective to assess infringement. If you infringe a valid claim, you should consider licensing the patent. If you don’t infringe or the claims are invalid, may want to request a formal opinion of counsel. This can protect you against treble damages in litigation if a judge or jury disagrees with your opinion.
A patent is an exclusive right granted by the government in exchange for public disclosure of an invention. The claims of a patent provide a legal definition of what the patent owner can prevent others from making, using or selling. Patents have a 20-year term starting on the filing date. This term can be extended if there are excessive delays by the patent office in examining the patent or delays by the FDA in approving a drug claimed by the patent.
Patent prosecution is the process of preparing a patent and responding to rejections from the patent office. Prosecution is expensive and time-consuming, and it exposes your ideas to competitors. The fees from your attorney and the patent office will total tens of thousands of dollars, and it usually takes 3-5 years from the filing date before a patent is granted. Before starting on this adventure, you should be confident that your invention is valuable and patentable.
