FTO – freedom to operate analysis


Searching patent documents

FTO freedom to operate analysis is searching for patent literature for issued or pending patents and obtaining legal advice on whether a product, process, or service can be considered infringing patents held by others.

Clearing obstacles

If the search for patents reveals that one or more patents do restrict the company’s freedom to operate, the company must decide how to proceed. The following strategies are possible:

Purchasing the patent or licensing in
Inventing around
Patent pools

Two or more related technology companies pool their patents to create a patent clearing house.

Protecting technology

If the patent search indicates that there are no patents blocking access to market and that a new technology is likely to meet the patentability criteria, a business owner may wish to seek patent protection for the new technology to ensure a greater degree of freedom to operate, instead of keeping it as a trade secret.

Defensive publishing or technical disclosures

There are many reasons why a company may want to avoid patenting an invention. Such a reason may be the cost of patenting. Also, the invention itself may not meet the criteria for patentability.

An alternative that is sometimes used is “defensive publishing” or technical disclosure. This is in stark contrast to keeping it a trade secret.

Choosing the right path

Thanks to the FTO, companies are well advised to consider their options at an early stage.

In some cases, minor product adaptations or the payment of a small license fee to the patent holder may be sufficient to avoid future disputes.

Assessing a company’s freedom to operate before launching a new product is a way to minimize the risk of infringement of patents held by others. It will also improve the company’s chances of finding business partners and attracting investors to support its business development plans.