Purpose & Use
One among many other Prior Art Searches such as Novelty search and Invalidity search is the Freedom to Operate (FTO) search. Often termed as an FTO or clearance search or Right-to-Market (RTM) search or Right-To-Use (RTU) search, freedom to operate search is an investigation of (competitor’s active) patents that can be potentially infringed when (your) product is launched in the market. It covers patents that have been issued or pending patent applications. An FTO search requires paying special attention to claims for all relevant patents that come up during a search. Claims are generally broadly written in order to cover broader scopes of the invention. Thus an FTO search requires extensive and meticulous analysis in order to uncover all relevant patents and their claims that can be infringed by the product to be launched in geographies of interest.
Usually, the Freedom to Operate (FTO) search or a clearance search is performed to identify the companies or the organizations and their respective patents which can obstruct the commercialization of the patent in question in the geography of interest. If there are any obstructing patents, the company can negotiate or in-license the overlapping patented technology before launching the product to avoid infringement later. In general, this type of search is conducted before launching a product in the geographical area of interest to ensure that the launched product does not infringe any patented technology later. The best results from the freedom to operate search will be granted patent overlapping with the technology of interest.
For instance, if a manufacturing company wants to launch its utensil product with a unique lid design. After having conducted a Patentability or novelty search, the company launched its product with the novel features. However, without conducting a freedom to operate search, the company went ahead with the launch hoping that the novel feature alone was sufficient to launch the product. At a later stage, a major player of a similar product in the market sued the company because it found features of the company’s product to be infringing the broad claim of a patent of the major player. The company had to stop selling the product and suffered big losses. Therefore it becomes necessary to conduct an FTO search to check the freedom to operate an invention in a jurisdiction from a legal standpoint.