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Freedom To Operate

What is a Freedom to Operate (FTO) Search?

Freedom to operate (FTO) refers to being able to use a product or process without infringing on existing intellectual property (IP) rights. When a person or company is getting ready to pursue a new idea, one of the most important steps is checking to see if it already exists. If it does, continuing down that path could lead to breaching the terms of a patent contract where the patent owner holds exclusive rights to the product or process.

By performing an FTO search at the very beginning, innovators can ensure they’re on the right path and can continue to invest in their idea, instead of forging ahead only to learn that someone else beat them to market and they’ll have to start from scratch. While a thorough FTO search is no guarantee of complete freedom, it’s an incredibly strong start and, when paired with specialized techniques, can minimize risks.

Other Terms for Freedom to Operate:

  • Freedom to Practice (FTP) search
  • Clearance search
  • Right to Use search
  • Patent infringement
  • Infringement opinion
  • Non-infringement opinion
  • NI opinion (NIO)

Why is Freedom to Operate Important?

Freedom to operate (FTO) is important because it informs the innovator if they’re at risk of infringing on someone else’s IP. Because the consequences of patent infringement can be quite severe, innovators must perform an FTO search to ensure the viable commercialization of their product or service.

Before starting out, remind yourself of the freedom to operate definition and its three main purposes:

  1. To understand infringement risks
  2. To understand where exactly those risks are (e.g., which technology is affected, who the patent rights holders are)
  3. How to manage those risks while moving forward in the innovation process

No matter the industry or product, an FTO search usually consists of the same two steps: first, performing a thorough patent search to check for existing patents in the same sector; and second, performing an analysis that will point out whether the burgeoning idea is at risk of infringement according to the patent’s scope of claims.

FTO searches can be further specialized from there, depending on the goals of the innovator. Perhaps they’re interested in analyzing patents from a single competitor, or maybe they’d like to instead focus on specific features. Another, more robust option is a comprehensive FTO search, which looks at all patent data relating to all aspects of the product, service, competitor or market.