The ability of a company to sell its products without interference can be an important factor to the company’s success. As a result, the company should make reasonable efforts to assure that its products are free from infringement of third party intellectual property. In particular, this includes the copyrights, patents or confidential information of third parties or competitors.
A proactive patent freedom-to-operate (FTO) investigation should be considered on all new product designs starting early in the product design cycle. FTO investigations can determine if a company product or process constitutes infringement of a valid patent, and identify options to avoid, counter or mitigate risk presented by such patents.
Prior to the launch of a new product, the product can be subjected to a final “scrub” review to assure that there are no outstanding IP ownership, licensing or patent clearance incidents.
Information concerning infringement of third party patents should be kept strictly confidential. E-mail or voice mail should not be used at any time to communicate infringement matters. Instead, these matters should be discussed in face-to-face meetings or in telephone conversations.
All third party patents believed by the company personnel to be relevant to a planned or existing company product should be called to the attention of the company’s legal counsel.