Is “Freedom to Operate” Mission Impossible? | OCTANe Event
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A panel of experts discussed the concept of “freedom to operate” in the context of evaluating and mitigating third party patent infringement risk at a recent OCTANe OC event. The discussion focused on startup companies, and the topics included: How to analyze the third party patent landscape; How to set an appropriate budget based on the company’s objectives and milestones; Understanding the impact of litigation on the company; What to do if the company is sued.
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Is “Freedom to Operate” Mission Impossible? | OCTANe Event
- 1. Is “Freedom to Operate” February 21, 2013 Mission Impossible? Irvine, CA The recipient may only view this work. No other right or license is granted.
- 2. “FREEDOM TO OPERATE” Can you make, use and sell your invention without being sued for patent infringement? © 2013 Knobbe, Martens, Olson & Bear, LLP all rights reserved. 2
- 3. INFRINGEMENT VS. PATENABILITY PATENT RIGHT TO EXCLUDE (§ 271) PATENT RIGHT TO PRACTICE © 2013 Knobbe, Martens, Olson & Bear, LLP all rights reserved. 3
- 4. INFRINGEMENT VS. PATENABILITY #1 #2 #3 Can Exclude #2 & #3 Can Exclude #3 Can Exclude Others Can Practice Cannot Practice Cannot Practice Can Practice Cannot Practice © 2013 Knobbe, Martens, Olson & Bear, LLP all rights reserved. 4
- 5. Is “Freedom to Operate” Mission Impossible? IP5 Statistics Report, 2011 at 48 © 2013 Knobbe, Martens, Olson & Bear, LLP all rights reserved. 5
- 6. VITO CANUSO, Esq. © 2013 Knobbe, Martens, Olson & Bear, LLP all rights reserved. 6
- 7. MARK J. KERTZ , Esq. © 2013 Knobbe, Martens, Olson & Bear, LLP all rights reserved. 7
- 8. AMY C. CHUN, Esq. PRACTICE Software / EE Counseling & Litigation BACKGROUND Clerked for CD-CA Software Engineer © 2013 Knobbe, Martens, Olson & Bear, LLP all rights reserved. 8
- 9. WHEN DOES THIS COME UP? © 2013 Knobbe, Martens, Olson & Bear, LLP all rights reserved. 9
- 10. How do you convince investors you have “freedom to operate”? © 2013 Knobbe, Martens, Olson & Bear, LLP all rights reserved. 10
- 11. HIGH LEVEL STRATEGY Do advance work? Impact of litigation on a company Investor expectation Risk mitigation strategies Expired IP / "off the shelf" technology © 2013 Knobbe, Martens, Olson & Bear, LLP all rights reserved. 11
- 12. NUTS AND BOLTS Which features do you study? Analysis limited to US Patents? Pending Applications Patents with broad disclosure, narrow claims? What about on-going litigation? © 2013 Knobbe, Martens, Olson & Bear, LLP all rights reserved. 12
- 13. ADDRESSING A PROBLEM REFERENCE • Non-infringement • Design Around • Invalidity • Licensing/Acquisition © 2013 Knobbe, Martens, Olson & Bear, LLP all rights reserved. 13
- 14. POST-ANALYSIS • Monitoring • Tracking Design Changes • Review Technical Materials © 2013 Knobbe, Martens, Olson & Bear, LLP all rights reserved. 14
- 15. LAUNCH PAD EVALUATION A. No searching or evaluation of 3rd party IP MORE RISK done; OR company has been sued or threatened or knows of significant infringement risk B. Some informal searching done, but no legal analysis performed LESS RISK C. Some formal searching done, legal analysis performed - results mixed to positive D. Extensive searching done - no significant 3rd party IP found creating risk © 2013 Knobbe, Martens, Olson & Bear, LLP all rights reserved. 15
- 16. Come meet the panel and bring your questions!