Freedom to Operate
A Freedom to Operate (FTO) is a type of Patent Search which is carried out to ascertain whether a product, process or service is violating or infringing on any existing patents. Huge amounts of money is invested by research organizations in developing their inventions and securing patent rights in their respect only to find out later that the resultant technology they were developing is already in existence.
Conducting an early FTO search will definitely save money, time, energy and resources by indicating to the company whether a product, process or service is in violation of any existing patents or not and avoid potential business risks. You can perform a FTO search during any point of a product life cycle to
- Make sure your technology is marketable before you waste time and money trying to develop it
- Minimize the risk of being sued in the future.
FTO search can also help you identify commercial opportunity by confirming the limits in existing patents. These limits can be followed by another organization. The patents are issued for a limited duration (20 years) and after that the patents are considered to be in the public domain that means it can be used by anyone. If the patent holder does not pay the required patent renewal fees throughout the period of 20 years, the patent would lapse which would again mean that the patented technology falls into the public domain. A FTO search will uncover whether the patent has expired or not, so you can use the technology risk free.
Also, patent protection is regional in nature and in many cases, technology is patent protected in one country but not in another. For example, if you want to sell a variety of Tomato seed in your own country, you might have complete freedom to operate. However, if you want to sell it in another country you may not be able to sell it as there the patents may have been issued in that country in that respect.
Finally, patents have limited scope. Scope means parts of an invention that are protected by the patents. There are some parts of the invention which fall outside the scope of invention for which the patent is not granted. You may be able to use those parts of that technology with no legal risks. A FTO search will identify which parts of patentable technology are off limits and which parts are not.
However, you can never be sure of infringing upon the patent of others particularly in sectors where there is extensive patenting. While applying for a patent the major risk is that commercialization may be blocked by a competitor who holds a patent for a technology incorporated within the product for which the patent is applied for. That is why many companies concern themselves about the FTO. Once they find out about the patents that might relate to their product or services, they dig deeper and probe further about the claims as it is the claims that define the scope of the rights of the other party.
The solution could be to design around that patent claim, changing your product or service so that you do not infringe on the patents of other people. The other available solution could be that is to seek License, a business arrangement giving you permission to exercise some of their exclusive rights.