Most people when they come in to see a patent attorney what they’re asking about is can I get a patent? That’s one of the questions to ask in terms of patent strategy but there’s also the parallel question of regardless of whether I choose to patent my product or whether patent protection is available can I actually even sell my product without infringing somebody else’s patent. So there are really two questions that need to be asked and one is the question of patentability, is there anything protectable there. The other question is freedom to operate. Do I have the freedom to sell my product out into the market place without infringing somebody else’s patent?

The patentability question is typically cheaper to answer than the freedom to operate question and here’s why: it’s focused on what are the new features that you’re planning to bring to the market that might potentially be patentable. It’s a very focused thing. The freedom to operate question is a little bit more difficult to answer and the reason for that is that there are a lot of patents that are out there. There are millions of patents that are out there and, obviously, not all them are still in force.

But in order to determine whether you can sell your product into the market place you have to look at what the features of the product are and which claims of which patents might actually impact your ability to sell the product out in the market place. And that requires quite a bit of searching and analysis and in a crowded art space, it can be quite expensive. But the thing to remember is that that question needs to be answered regardless of whether you decide to seek patent protection for your product. So it’s important to realize that there are really two different and distinct questions and both should be addressed.