FAQs

Freedom to Operate (typically referred to as “FTO”) is an analysis made by researching patents that may constitute an obstacle to the marketing of an invention. The FTO looks for patents belonging to third parties, which do not necessarily have to relate directly to the way the product is made but may cover some essential elements of the final product.

An FTO analysis will reduce the danger of infringing third parties’ rights and allow, in many cases, working around potential infringements. It should be understood, however, that an FTO analysis will never give 100% certainty that patent owners won’t sue you, whether because they rely on patents that were not uncovered during the FTO search or because of commercial reasons, even though they don’t actually believe that you are infringing their patent.

An FTO analysis is performed on the actual products to be sold, regardless of the invention or inventions embodied in that product. On the other hand, prior art searches are oriented towards finding prior publications that may render the invention non-novel or lacking inventive step and are geared toward assisting in planning patent protection for a given invention.

Performing an FTO will increase your comfort, but will not insure you against a lawsuit. FTOs, like any other search, cannot ensure that 100% of the relevant patents are uncovered, and cannot prevent third parties from suing you for strategic reasons.

If no FTO analysis is performed, there may be clear dangers to the company’s commercial activities that will remain unknown, and accordingly it will not be possible to prepare for them in a timely and efficient manner.