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Title: Basics of Writing Patent Non-Infringement and Freedom-to-Operate Opinions
Authors: Nagori, B P
Mathur, Vipin
Keywords: Patent
Patent practice
Clearance search
Prior art
Infringement analysis
Claim construction
Claim comparison
Prosecution history estoppel
Issue Date: Jan-2009
Publisher: CSIR
Abstract: Non-infringement and freedom-to-operate (FTO) opinions are legal advice given by a patent attorney with an objective to avoid infringement of other’s patent(s) by his client. These opinions set forth the attorney’s viewpoint on the non-infringing position of the client’s proposed product/process/technology. The basics of writing both the opinions are same except that rendering a FTO opinion requires comprehensive searching of existing relevant patents by the attorney, whereas a non-infringement opinion is rendered on one or more relevant patents already identified by the client. In a competent non-infringement or FTO opinion, the patent attorney analyses each claim of every identified relevant patent in a step-by-step manner through a process called as infringement analysis. The infringement analysis is based upon certain legal principles, which help the attorney in determining non-infringing position of the client’s proposed product/process/technology. Nowadays non-infringement or FTO opinions are frequently used as important business strategic tools by companies since these opinions assist greatly in critical decision areas like launching of a new product, acquisitions and mergers, contract manufacturing and designing of R&D strategy.
Page(s): 7-13
ISSN: 0971-5544
Source:JIPR Vol.14(1) [January 2009]

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