A Freedom-to-Operate is a legal opinion from an experienced patent attorney that identifies, assesses, and minimizes the potential risks of infringement in a given product or process. An FTO analysis involves identifying and analyzing any existing patents that may subject your company to patent-infringement liability. Performing this early in development can help minimize risk or allow for designing around identified patents while also identify areas of opportunity where the patent landscape is open.
What is a Freedom-to-Operate Opinion?
A freedom-to-operate opinion, or also commonly known as a “right to use” opinion, is a legal analysis that evaluates whether or not all aspects of your invention or service are legally viable. An FTO analysis will identify and analyze the patents of others to help assess and avoid any patent-infringement. Acquiring a patent does not grant you freedom to operate, the freedom to operate process may include commercializing or testing a product.
Why Get an FTO? What Are the Benefits?
There's evident value in filing for patent applications on inventions before launching a product. It's also important to ensure your product is in the clear before you apply for patents on your inventions. An FTO analysis can allow you to identify and limit the risk of future litigation and expenses that may arise from patent infringement. Acquiring a patent does not grant you freedom to operate.
An FTO offers several benefits, including:
peace of mind knowing their proposed product/service does not infringe upon anyone else’s intellectual property rights;
improved marketability since customers will feel more secure purchasing something they know has been legally vetted;
increased profitability since there won’t be costly lawsuits down the road;
quicker introductions into markets since entrepreneurs will already have done their due diligence regarding potential IP issues prior launching their offering into new markets overseas where IP enforcement may be harder than in one's home jurisdiction(s).
Done early on into you product development, it can also give you the opportunity to modify your invention design before reaching the point of no return or to take a license. A comprehensive FTO opinion can provide valuable insight about competitors' IP assets which can help inform future strategies for both offensive and defensive litigation postures should conflicts arise later down the road with competitors over issues such as design patents or trade secrets theft allegations against either party involved in said conflicts.
What Should I Consider in Deciding Whether or not to Get an FTO?
It is important to note that getting an FTO does not guarantee that you will avoid being sued. The FTO is, ultimately, an opinion in which researched patents and applications are subjective in relevance to your invention, and some applications may not have been published at the time of the analysis. The question that arises is: how can you minimize risk and maximize value? Here are some factors you should consider before getting an FTO.
What is your invention value?
Have similar products been litigated?
What are your business objectives and risk tolerance?
Are you sourcing all or some of your product or service from another company?
What does the competitive landscape for the invention look like?