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IP Strategy

Freedom to Operate: Protecting IP Assets Against Patent Infringement

No one wants to end up on the wrong end of a patent infringement lawsuit. Even if you prevail, defending infringement claims can drain your business of important resources. That’s why a Freedom To Operate (FTO) search is a critical step before bringing new products or features to market.

FTO search, also known as a right to use search, clearance search, or patent infringement risk assessment, is a due-diligence process to uncover any in-force patents or prior art that may overlap with the technology, process, or product you’re planning to launch.

Companies should perform FTO searches at various stages throughout the development process. Each phase in a typical development should include an FTO review, with patent counsel and the technology or engineering lead collaborating to discuss any added functionality. Descriptions of the new functions or features are compared against 20 years or more of prior art to assess infringement risk against third-party patents. Prior to launch, a final search will check against any new patents that have been issued.

Here are a few best practices when conducting an FTO search:

Set up alerts based on your initial FTO search. It’s important to stay on top of new patent applications and prior art publishing throughout the development process. Using a service that allows you to save queries and notify you of any new filings based on your past searches can minimize the risk of missing relevant art.

Don’t limit your searches to claims. The claims section of a patent often contains a lot of legalese and overly broad terms that don’t lend themselves to keyword searches. It’s important to search the full text of documents for relevant terminology, then work your way down to the specific claims.

Be market-specific. An FTO search should cover every country or region where you want to operate, because IP rights are specific to jurisdictions.

IP assets are the crown jewels for many businesses. Exposing them to infringement claims is a risk that’s not worth taking. You can never completely eliminate the risk of an infringement claim – baseless lawsuits are common – but you can lower your risk profile with the due diligence of an FTO search.