Freedom to Operate Search: Understanding FTO Search Analysis

 

Suppose- You have hit on a great idea, which has high potential. You started working on it with your product development team. You spent a lot of money on its R&D. As you are completely known of Intellectual Property, you can easily secure several features of your products after performing a patentability search. But, now as your product is ready to be launched in the market, but it results that there is an issue.  

Do you commit one big mistake in the procedure that could result in some unwanted litigation? Do you know what mistake you have made?

It turns out that you relied on a patentability search at the end and hire an intellectual property firm for conducting an FTO search just before the launch of a product. 

With FTO search, you come to know that your product cannot be launched in the market on which you spent thousands of dollars. Your product is infringing on various patents, which incorporates your competitors. But, canceling the commercialization of your product is not an option as you have spent a large amount of money on the development of the product and patent filing. 

Now, what can you do?

In this scenario, you have two options:

• Filing an IPR for the patents with identical claims 
• Purchase all the relevant patents 

Well, this option only works when you spend thousands of dollars, but still, there is not any certainty of thwarting litigation. 

This situation can be mitigated by getting an FTO search done in the started stage of product development. Performing FTO searches prior has many advantages too. It can help you avoid all the main barriers in the phase of development. And when you are ready to launch your product, you will have the freedom to operate. Following this valuable approach can help you reap great benefits. 

Let us now get to know in detail what FTO Search is…!

What is FTO (Freedom to Operate) Search?

The purpose of FTO or right to use search is to ascertain whether your planned product would infringe any patents or not. A Freedom To Operate Search might also incorporate the potential designs (possible product modification can mitigate the risk of patent infringement).

 The aim of the FTO search will be on patent claims and not the detailed descriptions or drawings. The main goal is to check If the product ignores any feature of each claim in the patents evaluated in the search. Not the same as validity or novelty search where the primary aim is on disclosure of prior art, the focus of FTO is mainly on the claims where time is needed to analyze. Due to this reason, an Freedom to Operate search costs more than the novelty search.

Why is it important to carry Freedom To Operate Search?

Below are several reasons to carry FTO search:

• Reduces the risk of getting sued by others for infringing patent rights 
• Assists in recognizing the patents which are expired and also identify technology that can be utilized from these expired patents 
• Assists in recognizing the patents which are related to technology or product and build financial tactics such as the purchase of patents, licensing, patent invalidation. 

The Success of FTO Search

The success of the FTO search lies in three questions: What? Where? How?

‘What’ describes the boundaries of the search. This elucidates our understanding of the process or product in question. What is the product or procedure in question, and what kind of issue can it solve? What are the primary or non-primary subject features of the product or procedure? Are we required to limit the search with application areas? How roughly or closely are subject features explained? What are the related geographies? Do we need to look for some alternative features of a product for the evasion option?

‘Where’ explains the tools and strategies to analyze and search patents for a Freedom To Operate search where to explore and get relevant patents from? Do we need to incorporate several data sources and types? Which section of a patent should a searcher analyze? Where is the subject feature disclosed?

‘How’ explains the differences between the new searcher and an experienced searcher. How does a knowledgeable searcher checks a pile of patents to access relativity? How does the decision-making procedure work? How do you decide which one to keep and which one to refuse? 

All the above questions act as a tool for understanding the key terms relevant to the product exhaustively, mentioning scope, assembling several search concepts. 

Process Overview of Freedom to Operate 

• Know the scope, therapeutic areas, subject matter, and particular market of technology
• Create a search tactic for recognizing patents the invention might infringe. Recognize and make keywords to evaluate technology in the claims section of patent application applied to technology
• Understand country-specific doctrines, statutes, and case laws for infringement
• Search patent-related prior art
• Check patents and review individual claims. Recognize technology and patents mainly to block the technology in question. Refuse results that are not related and keep a subset of patents with the claim, which presents an obstacle for entering the market 
• Recognize the solutions for potential problems such as patent status, possible expiration, or analysis.
• Create an FTO opinion as per the complete analysis and main findings
• Display the results to inventors. Show potential IP issues and solutions.

Benefits of FTO Opinion?

An FTO opinion can be beneficial in mitigating the risk. For instance, FTO offers:

• Assistance in protection against willful infringement charges by displaying an attempt at due diligence
• Reduction of investigator or concern about the risk of infringement 

Hire Ingenious to Serve you Better 

If you are doing business safely, then thanks to the freedom to operate search. It needs to be noted that an FTO search can never offer a complete guarantee that you are not at infringement risk. The search, however, provides a great indication of where you stand. You will come to know how and where you can market your product perfectly as well as safely. This can prevent annoying squabbles and potentially high costs. 

With this blog, you must have been familiar with the concept of freedom to operate search. If you are looking for experts offering intellectual property services that can help with FTO searches for launching your product successfully, then Ingenious e-Brain is the right choice. Our experience reflects in the service we offer to our clients.