Freedom to Operate Search (FTO Search) | Infringement Analysis / Clearance Search

Freedom to Operate_FTO_Search

Freedom to Operate Search is also known as Infringement Analysis or Clearance Search.To check whether any product or process utilized or carried out by an entity is not infringing on any live patent’s claim. Simply, it is used to ascertain whether there is freedom to operate and invention in a particular jurisdiction from a legal point of view.

If an FTO is found to be negative (i.e. live patent with claims covering the invention to be operated is located), the entity aiming to operate the invention may:

  • Not proceed to operate the invention

  • Invalidate or oppose the relevant patent

  • Apply for a license or buy the relevant patent

Case Study

A company VTS wants to launch a motorcycle in the market with a new engine, for which they have filed several patents after a patentability search. However, the company did not conduct a freedom to operate study considering that positive patentability study was sufficient for proceeding with the launch. It was later sued by a company BJA as one of its patent had a broad claim found to be infringed by an essential component of the VTS motorcycle engine, and the court instructed VTS to stop their launch and motorcycle manufacturing, due to which VTS suffered heavy losses.

Recommended Practices While Doing Freedom to Operate Search | Infringement Analysis / Clearance Search on Patent Database Platform

  • Date Restriction: Since only live patents may affect FTO, a time period of last 20 years is ordinarily used for searching patents. For pharmaceutical patents an additional 5 years can be added to the time period considering patent term extension

  • Jurisdiction Restriction: Specific jurisdiction(s) covering the market(s) where the product or process is to be practiced will only be searched for patent literature Database features allow geographical restriction for searches

  • Document Type Restriction: Only patents are searched for an FTO, since only patent claims affect FTO. Non patent documents are not searched for an FTO search. In certain projects, to keep a broad approach pending published

  • For an FTO, a broad claim covering the concept of the invention but not specific aspects of the invention shall be considered related. If a claim comprises elements A+B+C and the invention is A+B+C+D+E, the FTO is affected/ negated by the claim

  • In FTO all possible relevant results need to be found, as each of those relevant results individually affect. Missing even a single relevant result could be prejudicial to the objective of the project

This article contains excerpts taken from E-Book on Practical Patent Searching, second edition. To continue reading please download the full copy here:

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