Freedom to Operate Search or simple FTO search report is also known as Infringement Analysis or Clearance Search. The search checks whether any product or process utilizes or carries out an entity not infringing on any patent’s claim. In simple words, it uses to ascertain whether there is the freedom to operate an invention in a specific jurisdiction from a legal point of view.
If an FTO is negative, then the entity can aim to operate the invention as:
- Not proceed to operate the invention
- Oppose the relevant patent or invalidate
- Buy the relevant patent or apply for a license
Read Also: Importance of Patent Invalidity Search
What is a Freedom to Operate Search?
Before launching a new service or product in the market, it is imperative to conduct a Freedom to Operate (FTO), following an FTO Search Report or Clearance Search in the respective jurisdictions. Further, to assess the potential infringement risk and avoid subsequent litigation, the companies perform an FTO search. They search to identify any alive patents that may map on to the features of the service or product to be launched.
Typically, The FTO search report restricts to a particular jurisdiction. However, it is prudent to search for International applications that can enter the target jurisdictions to be sure. An FTO search report generally involves a claim specific search. It locates the claims on to the service or product’s features or to be launched in the market.
You should focus on the following aspects during the FTO search:
- Capturing the patent publications and enforceable patents that have features similar to the service or product.
- Identifying and provides the legal status of the patents so that the clients know about the expired patents in the public domain.
- Deciding whether you can revive the identified patents at a later stage.
- Providing a mapping amid features of the service or product with elements of the patent references to indicate the extent of mapping.
Read Also: Key Benefits of Patent Landscape Reports
What is the purpose of a patent clearance?
Why bother doing an infringement search if an FTO search report does not prevent a patent infringement lawsuit? However, there are two solid reasons for considering an FTO review. They are:
- Firstly, everything you learn from a patent infringement search will help you guide your sales, overall product development and any product modifications. Further, it may also help you design around the patent by simply modifying the future versions of your product.
- Secondly, a well written legal opinion can serve as an exculpatory purpose when you are liable for patent infringement.
Read Also: Prior-Art Search: Compulsory or not?
How does an FTO search differ from a patentability search?
Most IP product clearances are generally concerned with utility patents. It is because a change to the appearance of a product is not sufficient to avoid infringing a utility patent. Hence, infringement searches of utility patents focus on the claims only. They do not focus on the drawings or associated written descriptions. An FTO search report may refer to embodiments, or examples, shown in a patent for context.
Patentability searches typically overlook the claims since the primary concern in a patentability search is to figure out whether the client’s invention is novel or not. This difference in analyses can explain the vast difference in costs.
You should formulate a patent search strategy before conducting a clearance search. A well-defined strategy is valuable in optimizing the usage of resources such as time and money. Again, the website of USPTO and WIPO offers some of the most trusted databases.
Read Also: Patentability Search: A Short Introduction
Why choose us? – The Patent Search Firm
At The Patent Search Firm, we assist our clients in several FTO searches and provide FTO search reports for various jurisdictions globally. We other a wide range of services on various technology domains such as Electronics and Communications, Chemical, Mechanical, Computer Science and Information Technology, Electrical, Biotechnology, Pharmaceuticals and Life Sciences domain, etc. Our experienced team consists of Bachelors, Masters, Engineers, PhDs and a Law degree and the technical degrees making them perfect for Intellectual Property related services.
Read Also: Key Steps for Patent Landscape Analysis