It goes by several different names—product clearance searches, right-to-use opinions, and other terms. For the purposes of this blog, we will refer to the process of studying the potential risks of commercializing a new product or service as the “freedom-to-operate analysis.” This is an important step for companies and firms looking to profit off of an invention or innovation that could ultimately receive patent protection from the U.S. Patent and Trademark Office (USPTO).
What Can a Freedom-to-Operate Analysis Reveal About Your Subject Matter?
To preface the answer to the question posed above, it should be noted that not all FTO analyses are the same (more on that later). Generally speaking, the analysis can potentially accomplish the following:
- Reveal what infringement risks might manifest after commercialization of the product or service in question
- Show where those risks exist (which area of technology, in whose hands, etc.)
- Help determine patent holders or potential patent holders how best to proactively manage the risks revealed by the FRO analysis.
Additionally, an FTO analysis can expose areas of opportunity for the firm conducting the search. For companies looking to add to their patent portfolios, this is an appealing bonus to conducting routine due diligence through these analyses.
Tiers of FTO Analyses
As we mentioned previously, a particular freedom-to-operate analysis can concentrate different areas. For instance, a firm that is looking to keep costs down or has only a few prominent competitors can focus the search on that competitor. In addition to revealing whether or not there is likely to be a patent infringement claim, an FTO analysis can reveal invaluable insights into a competitor’s status.
Another type of FTO analysis can look at only one aspect of the product or service in question. For example, a company looking to commercialize a new GPS product can analyze the potential risks associated with the system that stores data.
Finally, a company looking to fully calibrate expectations and become aware of any risks can order a comprehensive FTO analysis. This type looks at all registered third-party patents related to any aspect of the product or service in question.
Conclusion
While freedom-to-operate analyses are critical for companies debuting new products or services, it cannot give assurances that there will never be litigation related to the patent. Instead, it can help set accurate expectations and reveal risks with commercialization. Van Court & Aldridge, LLP understands that you may not have the resources to launch a comprehensive FTO analysis. Whatever your goals and objectives, we can work with you to align those with the services we provide. To discuss your options today, contact us through our website here.
Van Court & Aldridge LLP
Latest posts by Van Court & Aldridge LLP (see all)
- What Can You Do About Cybersquatting? - January 20, 2021
