An Infringement Analysis is always done in order to find out whether or not a planned or existing product infringes an existing patent, or is likely going to infringe an existing  patent application after grant.

There are two very different cases of Infringement Analysis: A) a defensive patent Infringement Analysis is conducted by someone who wants to avoid infringing on others’ patents, and B) a claimant’s patent Infringement Analysis that is conducted by someone who believes that their patent rights have been infringed upon by others.

A “defensive” Infringement Analysis is conducted by a company or individual who wants to assess whether their own products or services may potentially infringe on existing patents held by others. The purpose of this analysis is to identify potential patent infringement risks, and to take steps to avoid or mitigate those risks.

A claimant’s Infringement Analysis. A claimant’s infringement analysis is conducted by a patent owner who believes that another company or individual is infringing on their patent rights. The purpose of this analysis is to identify whether the alleged infringer is actually using the patented invention. 

An Infringement Analysis is very different from a Freedom-to-Operate (FTO) study. While  Infringement Analysis provides legally binding information about whether or not a given product infringes a specific patent, an FTO study seeks to surface patents and patent applications for a given products, from a very large number of existing potentially relevant patents. 

In other words, almost every FTO study will require at some point in time one or more Infringement analysis. But not every Infringement analysis is started because there was an earlier FTO study done.

An Infringement Analysis always starts from a specific patent or patent application, and it involves two steps:
– examining the legal status of the patent or patent application in suit, and other members of that specific patent’s or patent application’s patent family,
– a detailed examination of the claims of the patent in question, as well as a review of the product or process that is alleged to infringe the patent

You actually do not need to put in a special effort to end up doing an Infringement Analysis. It is usually the other way around, the Infringement Analysis will come to you.

It happens regularly that a patent owner wants to know whether or not a competitor’s product infringes on his patent rights. 

Or a company that wants to build a new product is conducting an FTO study , and that FTO study surfaces a patent or a patent application that is potentially relevant for that new product.

It also happens regularly that someone learns of a potentially relevant patent or patent applications by a warning letter of a competitor. That also triggers an Infringement Analysis.