Freedom to Operate (FTO)
Freedom to operate refers to the legal right of a company or individual to commercially exploit a technology, product, or service without infringing on the valid and enforceable patents of others. It is an assessment of potential patent infringement risks that must be considered before launching a new product or entering a new market. The objective of freedom-to-operate analysis is to determine whether the proposed commercialization of a product or process could infringe on any existing patents, trademarks, or other intellectual property rights.
Also the Freedom to Operate (FTO) tries to bridge the gap between Innovation, where IP is the controlling driver and Access, where IP is a useful driver and is a very promising risk management strategy for licensing, cross-licensing, third-party opposition, seeking a compulsory license, M&A and product innovation strategy for inventing around, modifying the product so as to ensure that the commercial production, marketing and use of the new product, process or service does not infringe the IP rights of others. Freedom to operate is one of the key inputs in assessing, de-risking, and ultimately applying a concept as part of a new product or process development.
Here are the general steps involved in conducting a freedom to operate (FTO) analysis:
- Define the scope: Clearly define the product or technology you want to commercialize and the relevant markets.
- Conduct a patent search: Use free patent databases such as Google Patents, USPTO, EPO or paid databases to search for relevant patents.
- Analyse the patent data: Evaluate the claims of the relevant patents to determine their scope and coverage.
- Identify potential infringement: Determine if your product or technology falls within the scope of the claims of any of the relevant patents.
- Evaluate the risk of infringement: Assess the likelihood of being sued for infringement based on factors such as the strength of the patent, the likelihood of infringement, and the potential for damages.
- Identify potential defenses: Consider potential defenses against infringement such as prior art, invalidity, or unenforceability.
- Seek legal advice: Consult with a patent attorney to assess the risk of infringement and determine the best course of action.
- Implement a plan: Based on the results of the FTO analysis, implement a plan to minimize the risk of infringement, such as designing around the relevant patents or negotiating a license agreement.
Note: This is a general outline, the specific steps and tools used may vary based on the specific requirements of the FTO analysis.
