Freedom to Operate search(FTO Search)

Freedom to Operate (FTO) search is an imperative due diligence step to be performed for any organization during the early research stage of product/technology development, or prior to commercialization of a product or technology.

A Freedom to Operate (FTO) search involves conducting a search of patent literature for issued or pending patent publications, and obtaining a legal opinion on whether or not a product, process or technology may be considered to be infringing existing patent(s) owned by others. A Freedom to Operate search is also known as Clearance search, Infringement search, Third party right search or Right to use study.

Getting a Freedom to Operate search will open up avenues for licensing, designing around patented features, or getting the go-ahead to commercialize the product or technology.

SciTech Patent Art conducts Freedom to Operate (FTO) searches to answer questions such as the following:

Do you see any obstacles in my commercialization plan? If so, what are my commercialization options?

SciTech Patent Art conducts a Freedom to Operate / Right-to-Use / Infringement study for our clients before they launch a new product / technology in a new market to assess infringement risks or to identify licensing opportunities. It could also be used to understand if a competitor’s product /process is infringing your own Intellectual Property (IP). Such studies are business-critical as they directly impact the IP strategy adopted. Hence, a high level of expertise is required from the search service provider. SciTech Patent Art’s scientists are experts in Freedom to Operate / Infringement studies. We thoroughly analyze patent claims, compare the product / technology in question against the claims of active patents and provide our technical assessment. Our reports are typically accompanied by visuals that help you understand the rationale for our assessment. During the whole analysis stage, we work closely with you to ensure that we understand your needs.

Our Methodology for a Freedom to Operate (FTO) Search:

An effective Freedom to Operate study is conducted by collecting and analyzing information during the initiation of the study. The quality of the information gathered plays an important role in making the study effective. SciTech Patent Art has been conducting Freedom to Operate searches for over two decades and has developed a Standard Operating Procedure (SOP), including unique approaches that often result in identifying good prior-art and potential blocking patents. Our Standard Operating Procedure includes:

• Spend significant time early on to understand the technology in detail
• Identify key features of the product / process
• Develop multiple search strategies using appropriate keywords and classification codes
• Conduct multiple searches across various databases
• Screen search results based on well-defined criteria to identify most relevant documents
• Analyze and categorize documents as per relevancy and verify legal status
• Provide comprehensive and intuitive report with technical analysis

WHY SCITECH PATENT ART?

• For over 20 years, our team of searchers have been conducting Freedom to Operate searches for clients worldwide.
• Our team of searches are subject-matter experts across wide range of disciplines in science and engineering.
• Our searchers are well-versed with patent laws of different jurisdictions.
• Our Interactive and tailored work process ensures frequent interactions, and is flexible to change direction as needed.
• We provide follow-on services as needed.
• We work as per the needs of our client’s timeline, and offer pricing to fit their budget as well.

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Freedom to operate search is an imperative due diligence step to be performed for any organization prior to commercializing a newly developed product or process. Freedom to operate searches help identify any potential infringement on the intellectual property (IP) rights of another party.

A Freedom to Operate (FTO) analysis involves a search of patent literature for issued or pending patents and obtaining a legal opinion on whether or not a product, process or service may be considered to be infringing existing patent(s) owned by others. Freedom to Operate Search, also known as Clearance Search, Infringement search or Right to Use.

Freedom to Operate is the ability to make/use/sell/otherwise commercially exploit a technology without the risk of being sued for infringing someone else’s patent. Hence, the search should be carried out before manufacturing, selling, marketing or importing the product. The purpose of searching for FTO is to find any published patent applications or granted patents that include claims covering a particular product or process.

When to conduct a Freedom to Operate (FTO) search?

With significant patent filing taking place across several industries, it is worth conducting Freedom to Operate searches at multiple stages of the product/process development lifecycle. Freedom to Operate is usually conducted in the following scenarios:

• Early stages – Freedom to Operate searches can be conducted in the early research stage of product development to avoid infringements by modifying inventions to “design around” existing patents during the R&D process. By identifying key patents early on, it may be possible to find new ways to design around the claims of the patents that present the highest risk of infringement.
• Late stages – General practice is to conduct Freedom to Operate searches before the commercialization or launch of the product. If any blocking patents are identified at this stage, the products can be subjected to design changes (redesigned) before the product rollout or evaluate licensing opportunities to commercialize the product in specific markets

Getting a Freedom to Operate opinion will open up avenues for licensing, designing around patented features, or getting the go-ahead to commercialize the product or technology.

Key elements of a Freedom to Operate (FTO) study:

Freedom to Operate Search and Analysis is a complex process as it includes several key elements that need to be considered:

• Geographical limitations: Since intellectual property rights are specific to different jurisdictions, a “freedom to operate” should relate to particular geography/countries/regions where the product is being planned to launch/commercialize. Additionally, PCT applications for the last 30 months can be considered for the search.
• Time frame: As the patent rights are valid for 20 years, the “freedom to operate” study should consider 20 years from the date of publication. Hence, patents older than 20 years can be excluded from the FTO study. Active patents need to be considered for the FTOe study.
• Claim-based analysis: Claims are the most important part of a patent specification. The patent claim defines the boundary of the patent. It defines exactly what is claimed by the invention and therefore what is sought to be protected. Hence, for Freedom to Operate analysis, the search and analysis are based on the patent claims only.
• Product features/components: Freedom to Operate studies should be conducted on all the components of the product. Technology/product/device/process may have many independent aspects that need to be searched alone or in combination.
• Patent Legal Status: Patents that are in force/active should be considered for the Freedom to Operate study. Expired/lapsed/withdrawn patents need to be excluded from the study.

SciTech Patent Art approach to Freedom To Operate (FTO) search/ study:

An effective Freedom to Operate study can be conducted by collecting and analyzing information during the initiation of the study. The quality of the information gathered plays an important role in making the study effective. SciTech Patent Art (SPA) has been conducting Freedom to Operate searches for over two decades and has developed a Standard Operating Procedure(SOP), including unique approaches that often result in identifying good prior-art and blocking patents.

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