What Questions Does an FTO Answer?

  1. May the client engage in certain industrial or scientific activity or enter the marketplace without infringing on another’s patent rights?
  2. What patents exist in a specific technology area?
  3. How “busy” or “crowded” is an area of technology?
  4. Even if a suit is not going to be fruitful, what is the likelihood of being sued?

Who needs an FTO?

  1. An inventor looking to commercialize a patent
  2. A business looking to begin manufacturing, shipping, selling or investing in a specific business ideas or a general area of technology
  3. An investigator looking to do research in a given area
  4. An investor looking to invest in a particular business or technological area

What It Is

At the heart of a freedom to operate opinion is analysis. The weighing of what is called “prior art” technology (those patents that have been granted and published up to present day) is the most lengthy, complex, and thus costly part. FTOs are the most costly opinion a patent attorney can write outside of active litigation.

Generally, a Freedom to Operate Opinion can take two forms. In the first form, a specific industrial or scientific activity is planned and the attorney investigates if that activity can be performed without infringing on another’s rights. In the second, an entire scientific of business area, such as dengue vaccines, is investigated and the exact rights of all involved parties defined. The second is much more comprehensive, time consuming, and expensive. For example, as explained in the linked dengue vaccine report, six different vaccines for dengue fever are currently in development. As each vaccine is scientifically distinct each interacts with the prior art differently. The first report form would only look at one vaccine while the second would look at them all. Running upwards of 100 pages or longer freedom to operate reports that look at an entire scientific area are generally the domain of law professors.

Freedom to operate analyses are often, incorrectly, seen as simply duplicating the results of a patentability analysis. Suppose you had invented, the much maligned but useful, spork. Spoons, forks, knives, and chopsticks, would be discovered by a patentability report. These inventions could make the spork un-patentable. . Since making, using, or selling the spork could violate rights associated with these utensils a freedom to operate analysis would uncover them as well. Though a patentability analysis stops here, a freedom to operate analysis does not. Suppose the sporks production required the use of a particular metallurgical technique. As well, perhaps the most efficient method of selling the spork involved shrink wrapping individual items. Rights related to shrink wrapping or the metallurgical technique would have no bearing on the spork’s patentability. Thus, a patentability analysis wouldn’t consider them. However, both would limit the freedom of the spork’s inventors to operate. It would limit their ability to commercialize their invention by blocking exploitation of any rights associated with the spork., Thus, a freedom to operate analysis would uncover them. It is this discovery of upstream or downstream rights that make a freedom to operate analysis useful Information is power. Blocking patents found by a freedom to operate analysis can be dealt with at the businesses inception rather than hurriedly after resources have been committed. In our spork example, different marketing or production approaches could be considered. Alternatively, strategies to license the blocking technology could be formulated.

With a freedom to operate report you can boldly patent and commercialize your invention without worrying about trampling the intellectual property rights of others.

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