What is the most appropriate time to perform a FTO search
Posted on: January 17, 2023
It is quite difficult to determine which patents actually obstruct the commercialization of a product without performing a FTO search or a clearance search. It is a common practice for companies to prepare patent documents when they invent something new. If there are any patents that overlap the area of the invention, the company can negotiate or in-license the overlapping patented technology before launching the product to avoid infringement later. The freedom to operate is the best method of patent overlapping with technology in the geographical area of interest.
Usually, freedom to operate is exercised in the following circumstances:
Early stages: An FTO search is conducted in order to determine whether a product’s utility/design falls under the scope of any issued patent. In the early stages of development, FTO searches can help identify patents that may present problems in the manufacturing process. By identifying these patents early on, it may be possible to find new ways to work around them during product development.
Late stages: Fundamentally, general practice is to conduct freedom to operate (FTO) searches prior to product launches in a specific region. If the product contains any of the identified patents, FTO work will be required for design/utility changes, and potential licensing opportunities can also be evaluated.
In short, FTO search and perform:
1) Prior to launching a product in a specific region
2) Prior to finalizing a product design
3) Before developing a product or investing in a marketing strategy,
The importance of the FTO search:
The search for new technology without the risk of litigation is a significant issue for companies and startups. The FTO search seeks to shed light on this matter by providing a thorough analysis, comparison, or mapping of essential features of the technology being studied against the claims of relevant patents, active applications, and lapsed patents in selected jurisdictions. Finally, the legal opinion on clearance is provided based on the latest status of those documents.
The FTO report will primarily cite patents that may indicate the risk of using the technology but may also demonstrate that the technology is in the public domain and thus free to use. You might want to explore this option if any of your competitors are using technology that is protected by a patent that you don’t trust.
Be sure to follow these rules when it comes to FTO:
1) A patent search and analysis should be conducted at an early stage of product development.
2) Perform a competitor search after considering your top competitors and their technical fields as part of your search strategy.
3) Your search should be limited to target markets/region/country
4) Identify the scope of third-party rights that are pending (intact or unclear) or granted (firm or proven) and take appropriate action.
5) An expert can help you minimize FTO search costs, which depend on the level of certainty you require.
Finally, how does the search for freedom to operate differ from the search for patentability?
Patentability search and freedom-to-operate Searches are different in their nature, goals, and scope. Patentability Search mainly analyses the full descriptions of active and non-active patents and applications. The FTO search, on the other hand, focuses on claims of active and enforced patents to identify whether a breakthrough product or technology infringes on an existing patent.
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