TMMany startups make a costly mistake by assuming that obtaining a patent gives them complete legal protection to sell their product. This misunderstanding can lead to serious legal and financial consequences.
Two Distinct Legal Concepts
Patentability and Freedom to Operate (FTO) are separate legal assessments that serve different purposes:
Patentability determines whether your invention is new and non-obvious compared to existing knowledge. It asks: "Can you get a patent for this invention?"
Freedom to Operate examines whether your product might infringe on someone else's existing patents. It asks: "Can you legally sell this product without violating others' patent rights?"
Having your own patent confirms your invention is novel, but it doesn't protect you from infringing other patents. Think of it this way: getting a patent is like receiving a certificate of originality, not a license to ignore others' rights.
Real-World Legal Implications
Indian courts demonstrate this distinction clearly. They focus on whether a product falls within the scope of existing patent claims, not on whether the accused party developed their product independently.
The 2015 case of Merck Sharp & Dohme Corp. v. Glenmark Pharmaceuticals Ltd. illustrates this principle. Merck sued Glenmark over an anti-diabetic drug compound. The Delhi High Court examined whether Glenmark's product matched the claims in Merck's patent instead of considering whether Glenmark independently developed their version. The court ruled in Merck's favor, showing that independent development doesn't prevent infringement.
Common Startup Misconceptions
Startups often fall into these traps:
- "We have our own patent, so we're safe" - Your patent doesn't shield you from others' patents.
- "We developed this independently" - Independent creation doesn't excuse infringement.
- "Our patent attorney said it's patentable, so we can sell it" - Patentability approval doesn't equal FTO clearance.
The reality is more complex. Multiple patents can cover similar technologies. Your product might infringe older, broader patents even if you've secured your own patent. A patentability opinion from your attorney isn't the same as an FTO analysis.
Protecting Your Startup
Before launching, scaling, or seeking investment, take these steps:
- Conduct a thorough FTO analysis - Have experts search for patents that might conflict with your product.
- Map your product features - Compare your product's characteristics against existing patent claims.
- Don't rely solely on your own patents - They're valuable but don't guarantee freedom from infringement.
Conclusion
Ultimately, in a litigation scenario, the critical question is not whether you have obtained a patent, but whether your product infringes someone else’s rights.
In practice, some of the most expensive mistakes are not technical—they arise from incorrect legal assumptions made at early stages of business growth.
Disclaimer: This article is intended solely for general informational and educational purposes. It does not constitute legal advice, opinion, or a substitute for professional consultation. Readers are advised to seek independent legal counsel for advice specific to their circumstances before making any decisions based on the information provided herein.