A freedom to operate search, also known as a “FTO search,” is a type of patent search that evaluates the patent landscape for any protected technology that would prevent you from freely using your invention. Otherwise, you may be infringing on intellectual property without even realizing it. Freedom to operate searches are also called right to use searches, patent clearance searches, or risk assessments for patent infringement.
An FTO search is part of the due diligence that businesses should perform before applying for a patent. To make sure that R&D and IP resources are allocated efficiently and effectively a patent clearance search should preferably be performed earlier in the innovation process. In the event that your company is accused of intellectual property infringement, a thorough FTO search can help demonstrate due diligence.
What is Freedom to Operate?
The ability to use your technology without infringing on the intellectual property of others is referred to as “freedom to operate.” You can obtain freedom to operate by inventing your own novel technology, inventing around the patents of other entities, or licensing or purchasing the rights of the patent(s) on which your technology infringes. It is nearly impossible to have complete confidence in your freedom to operate. Rather, FTO is a legal opinion derived from an examination of the results of a freedom to operate search.
Deciding Your FTO Search Strategy
It is impossible to rule out all possibilities in an infringement case. However, certain circumstances necessitate a more thorough freedom to operate search. To get a sense of how thorough your FTO search strategy should be, consider the following questions:
What stage of the innovation process are you in?
During the research and development process, an FTO search should be performed several times. However, depending on how complete your invention is, how you approach the search may differ. For example, you may not look at many patent applications early in the process since the scope of their claims could be significantly different by the time they are patented, and you are prepared to file your own patent application. An AI-based solution, such as XLSCOUT’s Novelty Checker, can provide R&D teams with confidence in the novelty of an idea early in the innovation lifecycle.
The frequency and depth with which you examine patent applications as part of your FTO search is also determined by how quickly your industry innovates and patents new inventions. Using an intuitive solution for the FTO search process allows you to continually monitor the patent landscape throughout the invention lifecycle.
How closely involved are you in the advancement of this technology?
In general, the greater the R&D investment, the more critical it is to have confidence in your freedom to operate. However, it is critical not to pursue your FTO search beyond the point of diminishing returns. Your FTO search strategy does not have to be as comprehensive for technologies with a lower investment and potential ROI, as more in-depth searches necessitate more resources.
How risk-averse are you?
Of course, if your company is willing to take the risk of introducing a product to the market with very little knowledge of its freedom to operate, you won’t need to conduct a thorough search. However, this strategy is rarely recommended, as the threat of an infringement suit without proof of due diligence is not something that even risk-averse organizations want to be involved in. Companies that are risk-averse will want to invest in a comprehensive FTO search at various stages of the innovation process.
Is there a lot of litigation in your industry?
Some industries, such as consumer goods, biotechnology, and electronics, are more likely to face patent infringement litigation. If your company operates in (or near) these markets, you should conduct a more thorough patent clearance search. It will shield you from a lawsuit alleging intellectual property infringement.
Where do you want to operate?
Depending on where you intend to operate and sell your invention, your FTO search strategy will differ. Depending on the product or process you want to commercialize, you may only be able to search a few significant patent offices, including the USPTO and EPO. You may need to broaden your search or turn to a professional partner for greater confidence or a global product.
Do you have a patent already?
Even if you already have a patent, you should perform an FTO search. This is especially true if you intend to launch a product on the market. Having a patent does not guarantee that you will not violate the rights of a current or future third party. Even if your product has its own set of distinct features, it may employ technologies covered by a different patent.
XLSCOUT put the use of reinforcement learning to its AI-based Novelty Checker (patent searching tool) to get quality patent search reports in just 5 minutes. The Novelty Checker filters out the noise by displaying the most relevant results at the top of the list. To be precise, it assists in conducting FTO searches to help you ensure that you don’t infringe on someone’s invention. By selecting a few relevant and non-relevant results, users can apply them to the result set. The system takes the user’s feedback and then learns from it. It uses conceptual searching and re-ranks the results by bringing the quality results to the top and sending the noise to the bottom.