IP infringement is a serious offense that can hurt your company. Avoid years of litigation and back-breaking costs using AI-powered analysis to understand and mitigate infringement risks.
Freedom to Operate
Within a given technology landscape or marketplace, current and pending patents define the right to make, use, or sell an invention. The commercial and intellectual property white spaces between this prior art constitute the freedom to operate. FTO refers to the ability of an inventor or business to deploy technology without infringing on others’ IP. A FTO search should be among the first steps when determining whether to develop, patent, and market a technology. FTO searches can also be conducted at multiple points of the innovation lifecycle and can help inform the design, manufacture, and use of technology as well as the claims made within a patent application.
To avoid infringement, FTO searches should encompass all available literature, including defensive publications, manufacturing processes, ownership information, and legal documents.
Even if you decide not to apply for a patent, you should still conduct a thorough FTO search. In the US, searches should uncover in-force claims from the last 20 years and include all relevant features of the technologies in question. Searches should help decipher literature descriptions and patent claims including both dependent and independent claims. FTO searches can also include a technology’s legal status, jurisdictions of interest, international applications, and even lapsed and abandoned patents.
While an FTO search assesses the ability to use a technology, a patentability search looks at whether or not the invention is patentable based on its novelty. Like FTO searches, patentability searches cover all available patent literature, including prior art and expired patents. Patenting a technology can be an expensive and, in some cases, risky process. A patentability search helps determine the wide range of technical specifications protected by patent claims within a patent landscape.
The line between infringement and novelty isn’t always clear. Patents do not automatically negate potential infringement risks, and inventions with overlapping claims can still be patented. Depending on how the invention is described and how claims are authored, technology infringement can still occur when it’s deployed in the marketplace.
Patentability searches can help inform patent application details. With the roadmap a patentability search provides, you can determine the scope of your patent and set the boundaries of future freedom to operate.
When the upside of patenting does not overcome its cost and risk, other options, like defensive publishing to IP.com’s Prior Art Database, may help you protect your freedom to operate without a patent.
While it’s important to understand the conceptual nature of FTO searches and patentability research regarding your infringement risk, data can be difficult to interpret.
IP.com’s innovation suite not only uses AI to perform comprehensive prior art searches and assist with writing defensible invention descriptions but can help isolate the most important summary metrics and predictive analytics related to risks.
IP.com’s proprietary Technology Vitality Report leverages its Semantic Gist® engine to apply natural language processing (NLP), to quickly and succinctly evaluate key aspects of a technology’s novelty. Beyond patentability searches, the TVR provides insights comparing your technology to those described in other prior art. It also helps highlight competitors and important dimensions of your technology. At glance, you can determine the volume of patents filed in a given patent landscape so you can identify the trends that contribute to infringement risks. Armed with the knowledge provided in a TVR, you can make decisions as to whether your technology is patentable and its vulnerability to infringement.
In addition to the TVR, IP.com’s unique Patent Vitality Report helps managers and technical teams identify potential litigation risks, patent quality, and monetization potential, as well as new technology value and overall description strength. Like the TVR, the PVR relies on IP.com’s in-house AI engine to search thousands of technology descriptions. By comparing your technology to existing prior art, you compare and analyze technical specifications accurately and efficiently.
By combining insights related to litigation risk and monetization potential, a risk-benefit analysis can be performed. Multiple factors influence litigation risk including a patent’s impact on related industries and competitor technologies. The strength of your description and commercial value may offset infringement risks or inform your decision to assert, defend, or renew a patent—all of which can impact later infringement risks.