Freedom to operate is the right to sell your product without infringing any existing rights. It checks if a particular country/competitor has a product similar to you or not. The main aim is to calculate the risk of patent infringement.
In the case of no similar products, one can easily commercialize the product but in case of violation, the Organization gets sued or has to pay royalties.
Related article: FTO searches for an industrial patent.
How to analyze Freedom to operate?
FTO analysis is a tiring process. However, one can consider some factors for a great FTO analysis. Here are some factors to keep in mind:
- Narrow your search: Companies seek patent protection only in a few countries. Some technologies are not protected in public domains or countries with few buyers. In such cases, there is no need for permission to use the product.
- Determine the scope of the patent: Unclaimed features don’t fall under patent protection hence look for such claims. It is a tough process. Subject matter experts and Searchers carefully study the description and the history of the patent application.
How to obtain FTO?
If an FTO analysis reveals one or more similar patents, Firms use different techniques to proceed. Here are some methods to attain FTO in such cases:
- Purchase the patent: Sign an agreement with the patent holder. Therefore, One can secure the patent for use in limited markets. In return, Patent holders demand one-time or periodic royalty payments. Most importantly, clearly define the terms and conditions to secure the freedom to operate.
- Cross-licensing: This term means when two companies agree on using each other patents. However, Both companies must have a quality patent portfolio to benefit each other.
- Focus on variation: Try to modify the invention. In other words, focus on achieving the same result with a different process. This practice doesn’t fall under patent infringement. Thus, a firm can use an alternate path without paying licensing fees.
Related article: Virtual IP paralegal: Why should you hire one?
When to conduct an FTO search?
Most companies conduct an FTO search in case of a new product launch. However, a major factor is the developing cost of the product and the cost of supplying. Therefore, If a huge amount of money is invested in the product then conduct a wide FTO search.
Key points to remember:
To sum up, Securing 100% freedom to operate is not practical. The risk of patent infringement always exists. Hence, the proper way to deal with it is to seek professional advice. Effective communication between both parties is crucial otherwise situation worsens. A couple of solutions are figured out and every solution has a different price tag.
- Conduct an FTO search in the early stages of the product. It saves a lot of funds. Also, It helps the inventor to change the approach.
- Focus on key competitors and potential markets.
- Above all, hire a professional. Attaining FTO needs attention to detail and professional services save time and money.
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