Freedom to Operate (FTO) analysis

Do you have plans for the commercial exploitation of a new product or process? Before proceeding, it’s worth checking that you can enter the market without infringing on others’ patent rights. The earlier you are aware of possible patent rights of other parties, the more cost-effectively you will be able to adapt your own product development plans, thus saving time and effort.

The most relevant question in FTO analysis is whether your competitors hold valid rights such as granted patents with paid annuities, or whether they have submitted applications that have a realistic chance of being granted a patent. An FTO analysis seeks to identify these patents and applications through worldwide patent database searches. A full FTO evaluation also takes into account utility model and design registrations as well as trademarks.

Another essential factor is the geographical scope of protection. Are your competitors’ rights valid in the regions where your company has operations such as sales or manufacturing? For example, a European patent may be valid in only a small number of the 38 EPC signatory states, and verifying this will require searches in multiple national patent databases.

An FTO analysis is based on defining the features and technical characteristics of your product or process in sufficient detail. We compare these characteristics with the claims of patents granted to your competitors and assess whether your product or service falls within the scope of protection of the patents. At this stage, careful interpretation of the terminology in patent claims is essential. As a result of the process, we will provide you with a Freedom to Operate declaration that supports your business decisionmaking and risk management.

Technology companies with active product development should carry out FTO analyses regularly for their new solutions. Patent applications are confidential for 18 months from the filing date, so up-to-date FTO searches are crucial for keeping abreast of competitors’ patent rights. By carrying out an FTO analysis, you avoid unnecessary investments in products that would eventually run into the IP rights of others.

Learn more about our Freedom to Operate (FTO) service package!