Patents are an essential component of a system that governs Intellectual Property Rights and are responsible for protecting technical inventions and associated subject matters. A privilege that may be awarded for an invention, a product or a process that provides, in general, or offers a new technical solution to a problem is called a patent. To obtain a patent for an innovation, applicant must disclose technical details of the relevant subject matter available to the public through a patent application. However, it is essential to remember that patent litigation may be financially burdensome, hazardous, and risky. As the adage goes, “prevention is better than cure.”

Therefore, a significant danger is involved whenever a company, organization, corporation, or any individual intends to develop a new product and introduce it. This is especially true in technology industries that deal with a high number of patents. Because of this, many businesses make an effort early on to ensure their “freedom to operate,” also known as FTO. This means that they try to ensure that the commercial production, marketing, and use of any new products, processes, or services they develop do not infringe on the property rights of any third parties. Therefore, a freedom to operate (FTO) analysis is essentially an infringement analysis, conducted on a country/territory by country/territory basis, helping patent applicants evaluate if they can use their product/process without threat of infringement. FTO assessment helps analyse and form a legal opinion that focuses primarily on patent/design/IP claims of third-party patents.

In other words, ability to conduct business in a particular jurisdiction without infringing on IP rights of others is referred to as “freedom to operate.” After determining that no active patents are being infringed upon or are otherwise in force, freedom to operate can be granted so that the newly developed product/process or a product/process intended to be launched/manufactured/marketed can be processed without threat of infringement. A positive FTO search therefore allows an entity or a person to manufacture and sell products without infringing on the rights provided by active patents currently in effect.

A patent-eligible product must be unique, inventive, and have industrial use. However, the mere possession of a patent is not a guarantee that a person will not violate the patent of another firm. Nonetheless, a novelty search has demonstrated that after an invention fits the fundamental conditions for a patent, one can continue to consider the remainder of the market. There is the option to control search to gain insight into this market. Freedom to Practice search is also known as Patent Clearance search, Right to utilize search, and Freedom To operate search, and therefore should be conducted not just for non-IP backed products but even for products that may be protected through an existing patent, which still may, upon commercialization, lead to infringement of a broader and older live patent.

A robust FTO patent search may allow a creator or company to construct a design early in the development phase before vast amounts of time and cash are invested into a product or process. At the same time, an FTO search can also indicate adjustments to license existing technology, which aids in saving time and lowering the danger of litigation procedures. For select inventors or companies, usually start-ups, an FTO search might allow founders to trust their idea and aid in procuring finance from probable investors.

When a company plans to create and sell a new product, a significant danger, especially in technological sectors with extensive patenting, is that commercialization may be stopped by a competitor holding a patent for a technology incorporated into the product. This is why, at an early stage, many companies strive to guarantee their “freedom to operate,” i.e., to ensure that the commercial manufacturing, marketing, and usage of their new product, process, or service does not infringe on the IP rights of others.

The costs of patent litigation are typically relatively high, and the amount of time required to get a decision is also quite considerable. Because conducting an FTO analysis in advance presents the possibility of calculating the likelihood of infringing a patent, it is recommended that this step be taken as soon as possible in beginning a new project.

A correct FTO analysis on its own cannot measure the probability of avoiding patent infringement litigation; however, it would open up new business opportunities by revealing the number of options in the field of technologies within the market, and it would also help to reduce the risk of infringing on the rights of third parties. Therefore, searching to determine whether or not a company has the “freedom to operate” not only helps to prevent patent infringement but also makes it easier to run a business securely and reveals the patent rights of third parties that could be infringed upon if the company starts doing business.

Therefore, an FTO search is an infringement analysis to analyze the infringement status thoroughly. The search for FTOs is essential to such competitive intelligence since it eliminates the risk of infringing on new technological innovations. In addition to this, it assists companies in generating healthy revenue from the sales of their products and services.

How an FTO Search differs from Patentability (Novelty) Search

An FTO and a patentability search may appear to have little in common at first glance. Still, a significant distinction between the two is often overlooked and is of considerable importance to businesses. A search for patentability is carried out to determine whether or not a new invention offers many advantages over previously known methods.

On the other hand, an FTO search aims to identify the likelihood that a product/process infringes on a third party’s patent/IP and the mechanism by which this might occur. The mere possession of a patent right, which falls under the category of negative rights, does not in and of itself confer the freedom to access the market. This indicates that a patent is not a guarantee that there will be no infringement of the rights of third parties, which is precisely why it is necessary to do a search or study about the freedom to operate.

Do you still need to conduct an FTO search if you already have a patent?

Absolutely, and this is especially true if you plan to sell your product. The ownership of patent rights does not provide any assurance that your product will not violate a third party’s existing or future patent rights; this is when your FTO helps you determine the position of your patent. Even though your product may have some innovative characteristics, it is still possible for it to infringe on technology that other companies patent.

IIPRD offers proven competence in conducting such Freedom-to-Operate (FTO) search and delivering relevant results with an exclusive section for Key Feature Mapping. IIPRD has been regularly supporting large High-technology and Pharmaceutical Clients for FTO searches in geographies such as EP, UK, US, CA, and India, among other landscapes for which our team utilizes state of the art Paid Patent and Non-Patent search databases for conducting the searches.

We believe that FTO search is more than processing specific queries and retrieving patents. The report formed after conducting this search should target a series of questions relevant to your patent. We work with various companies in areas including but not limited to pharmaceuticals, biotechnology, medical devices, software, IoT devices, core electronics, engineering devices, among others to offer an accurate and objective FTO search opinion to be rendered on a territory or a group thereof. The FTO search is conducted considering the nature of the client’s company and the number of patents involved. We advise our clients to conduct FTO searches at various product life cycle stages. Depending on the location of the client’s patent, we counsel them to proceed accordingly. For instance, if the client is still at the prototyping stage, it might be economical to conduct several focused FTOs by limiting the analysis to limited territories, inventors, or product features.

Our experience and expertise in interpreting patent documents during infringement suits enable us to analyze patents with the proper perspective to provide insightful opinions on the freedom to operate for your innovations. Our report shows all the patents needing to be licensed or challenged, thus saving time and reducing litigation risk. We work as per the requirements of clients. Our team consists of experts having diversified technological backgrounds. We are structured to, through our team of over 240 professionals, support organizations across technology domains and requiring FTO searches/opinions. All our reports remain confidential (unless stated otherwise expressly) and covered under attorney-client privilege.