The basic of any search consists of few important steps which bears utmost importance. Defining search strategy for FTO search can be composed through the below-mentioned steps.
- Identify all the aspects of the product that might conceivably have been patented.
- Identify all un-lapsed patents and patent applications potentially relevant to each identified aspect, in the desired jurisdiction(s).
- Review each of the patents and patent applications identified in the search to determine if it contains claims covering the identified aspects of the product.
However, it is very common for the products to have multiple aspects. Searching for each and every aspect is usually impractical. Thus the searcher often has to define search strategies with a trade-off between the resources (usually time) to be used while still be relatively confident about not missing on any important reference.
Elements of a good strategy
A little introspection using the below points may help to develop a suitable FTO search strategy:
- Identify aspects of your product/process that are novel and industrially applicable. Use this information to narrow the search to only those aspects of the product/process which are also most likely to face claims by the competitor in his/her patent.
- Identify competitors that are likely to be manufacturing/distributing a similar product. Then, focus the search on identified assignees/inventors.
- Sometimes even the market value of the product/process may drive the clearance search process. More valuable the product, more it makes sense to invest resources in completing the search in order to secure against expensive litigation, and vice-versa.
Implementing the above steps might help to develop a search strategy that is practical in terms of time to be spent on the search. All said, there will always be risks when you decide to cut resources with any strategy. For example, if one decides to focus the patent clearance search only on critical features of the product/process, then you might miss on potential patents which are protecting the secondary features of the product/process, and thus possibly expose you to infringement claims. However, this is a trade-off that is usually acceptable in the industry.
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