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If a product/process is patentable, does it mean that freedom to operate exists for that product?

BananaIP Counsels > If a product/process is patentable, does it mean that freedom to operate exists for that product?

If a product/process is patentable, does it mean that freedom to operate exists for that product?

The criteria for the patentability of a product/process are that the product/process should be subject matter, useful, novel, non-obvious and enabled. An invention will be patentable only if it passes the aforesaid criteria. If a product/process is patentable, then it may NOT necessarily have freedom to operate within a particular jurisdiction because the criteria for assessing infringement for ascertaining freedom to operate is based on different principles when compared to patentability. Infringement is assessed based on whether a product/process falls within the scope of a patent in force.nnA product/process may be patentable and still infringing if it falls within the scope of patent claims of another patent that is in force.nnFor example, consider a case of a product A with elements A, B, C and D and an in-force patent D1 covering a product B with elements A, B and D in one claim. Due to the presence of the extra element C in the product, the product would be novel and non-obvious in light of the cited prior art (here we are assuming that there are no other relevant prior art) references. But if the owner of the patent covering the product A practices the product in that particular jurisdiction, he would be infringing on D1 as all the elements of D1 are present in product A.n

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