Freedom to operate search (FTO) is the freedom to commercialize a new product/process without infringing on others’ patent rights.
Commercialization of infringing products may lead to penalties, lawsuits, and royalty payments.
A Freedom to Operate search finds out in advance whether your product will infringe on someone’s patent.
FTO search report can be used as a base for devising a strategy for proceedings related to product launch.
What is FTO Search:
These are sometimes also referred to as clearance searches. These are generally conducted in cases where a release of the product is aimed for. Such a search is conducted as a part of IP due diligence to avoid potential infringement. It helps a company to understand if the proposed product or invention doesn’t violate any active patent. If there are possible infringements, this search enables the companies to take appropriate business actions. These searches also divulge details about the patent-pending applications, which, if eventually granted patent rights, might be potentially infringed by the product in question.
So basically FTO search is conducted to:
1. Analyze the requirement for their product.
2. Understand market competition
3. Device marketing strategies
4. Device pricing strategies
Relevant Aspects of a Clearance Search:
1. FTO search is restricted to only active patents.
2. Non-patent literature, scientific journals, etc., are considered irrelevant
3. FTO search is mainly restricted to claims
4. Jurisdiction of interest is also considered
5. Time period of about 20 years from the date of the search is taken into account.
6. Every element of the product should be assessed; with respect to the available patent reference (separately and combined).
7. FTO search results provide a thorough conclusion about granted patents only. That is the reason unpublished applications will not get noticed. Therefore, it is usually advised to conduct such a search every six months.
Advantages:
1. FTO search is mainly recommended to be carried out at the early stages of product development so that substantial development costs on developing infringing products and other infringement charges are saved.
2. Such a search will reveal expired patents, and many valuable technologies can be used from these expired patents.
3. Another option of purchasing relevant patents may be explored.
4. Obtaining a license from the patent holder for a specific duration on payment can be considered.
5. Redesigning the product to avoid infringement can be done.