It is one type of patent search that goes by many different names:
- A freedom to operate search (FTO)
- A patent clearance search
(or sometimes just a clearance search)
It may also be less commonly called the following:
- A right to use search
- A freedom to practice search
No matter what it is called, however, the goal is always the same:
To put it another way, an FTO search is a way to determine if your product or process—no matter if that product or process actually exists or is still being developed (or is even still just an idea)—would infringe any existing patents.
In the end, an FTO search enables an inventor or company to know in advance if there are any patents covering the inventor’s or company’s product or process.
Table of contents
- When Should a Freedom To Operate Search be Conducted?
- What Is a Freedom To Operate Search Specifically?
- What Is the Difference Between a Patentability Search and a Freedom To Operate Search?
- What Is a Freedom To Operate Analysis?
- What Is a Freedom To Operate Opinion?
- What Are the Benefits of a Freedom To Operate Opinion?
- What Is a Freedom To Operate Report?
- What Else May Be Included in a Freedom To Operate Report?
- What Does a Freedom To Operate Report Cost?
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Generally speaking, a freedom to operate search should be carried out as early in the product or process development cycle as possible.
Doing so delivers two important benefits:
- Avoids unnecessary costs and the wasted allocation of resources.
- Reduces the risk of costly and time-consuming future litigation.
A good FTO patent search can also provide an inventor or company with the opportunity to develop a design-around early on in the development process, before large amounts of time and/or money have been sunk into a product or process.
At the same time, an FTO search can also highlight opportunities to license existing technology, saving time and reducing the threat of future patent litigation from the get-go.
And for some inventors or companies, especially start-ups, an FTO search can provide confidence and reassurance to potential investors or shareholders.
In addition, it is important to remember that the scope of an FTO search should cover all of the countries or jurisdictions in which an inventor or company plans to make, sell, or import this product or process. This, however, can make an FTO search more complicated and costly (more on that in a minute).
Though they may seem similar (and they are often easily confused), a patentability search and an FTO search are actually quite different.
Basically speaking, a patentability search must cover all publications, including prior art and non-patent literature, to determine whether the product or process at issue is novel and can indeed be patented.
An FTO search, on the other hand, focuses its search strictly on patents, since it is only active patents (and not other types of documents) that give the holder(s) the right to pursue litigation.
- All publications (prior art and NPL)
- Usually faster and not as expensive
- “Can I get a patent for this idea for a product or process?”
- Granted patents only (and pending patent applications in some cases)
- Usually more complicated, time-consuming, and expensive
- “Are there any existing active patents that would prevent or limit me from making, selling, or importing my product or process?”
A freedom to operate analysis is just what it sounds like—an analysis of the search results that focuses on the claims of the patents. At this point, the other elements of the patent, such as the specification and drawings, are less important (though they may still be reviewed), since it is the patent’s claims that demarcate the patent’s legal scope.
This is where a patent professional, such as a patent attorney, comes in, for it is in the analysis of the claims that experience and expertise are required. This is also the reason that the FTO search costs tend to be higher than other types of patent searches, such as a patentability search.
It should be noted that an even more in-depth FTO search involving pending patent applications can also be conducted. Although this may assist in providing a possible picture of the situation in the future, this information may end up being more hypothetical in nature, since the status of pending patent applications can change at any time.
Basically, an FTO opinion is a written document that states the legal opinion of a patent attorney about any infringement of a product or process upon other patents.
Although it tends to be expensive, an FTO opinion can be a worthwhile investment, especially if litigation is prevalent in the industry.
In fact, an FTO opinion might be a requirement if the inventor or company is seeking outside investment.
In particular, an FTO opinion can be quite useful in reducing risk.
For example, FTO provides:
- Help in protection against “willful infringement” charges by showing an attempt at due diligence.
- Mitigation of investor or shareholder worry or concern about the risk of infringement.
An FTO report usually contains the FTO search results, analysis, and opinion.
It can be a valuable resource for an inventor or company, especially if an IP attorney has been hired to complete this report early on in the product or process development, since this can provide ample time to develop a workaround or other solution, should the need arise, minimizing wasted resources.
If some possible risks are found, then additional information may be found in the FTO report:
- A non-infringement opinion provides additional details about whether a product or process may infringe on a patent. It can be used to gain a better understanding of the patent that might be asserted against the product or process at issue and assess that patent’s strength.
- An invalidity opinion assesses the validity of the patent at issue and evaluates whether it might be possible to “kill” that patent with invalidity proceedings.
To put it bluntly, an FTO report tends to be on the more expensive side, especially in comparison to other types of patent searches.
This is usually because FTO searches can be more complicated and time-consuming, particularly if they cover multiple countries or jurisdictions, and they do require the time, effort, and experience of IP professionals, such as a patent attorney. In addition, an FTO analysis and opinion will require the services of a patent attorney.
Generally speaking, an FTO report can range anywhere from a few thousand dollars at the very lowest all the way up to US$50,000 or more, with costs of US$10,000 to 20,000 being common (FTO searches and reports also tend to require more time to complete than other types of searches).
For comparison’s sake, a patentability search usually runs more in the ballpark of US$1,500.
As someone once said, “Freedom is never free,” and the same could definitely be said of an FTO search.
However, the cost of not conducting a proper FTO search can be even higher in the long run, especially if the result is costly and protracted patent litigation down the road.
So, it seems fair to say that it makes sense for an inventor or company to think very carefully about conducting an FTO search—and hiring experienced patent professionals to do so—especially if it is early in the product or process development.
After all, even if you have what you consider to be the finest product or process in the world, if you don’t have the “freedom to operate” when it comes to making, selling, or importing it, you will not be able to profit from your product or process.
You can always conduct an FTO search on your own. Patentcloud’s Patent Search offers accurate and complete global patent data, which is friendly to both beginners and patent professionals. Give Patent Search a try now!