Freedom to operate (FTO)

A freedom to operate (FTO) search is a comprehensive infringement search on active patents within particular countries or markets where a company endeavours to market its products.  This activity is aimed at ascertaining whether a product can be tested or commercialised freely in any country or market. It considers others’ patents to determine whether you will infringe on other patents if you utilise your patent / technology commercially. Freedom to operate is a key risk for any investor, since they do not want to invest a lot of money in your technology, only to find out much later that a licence from someone else is required to do business based on your technology. Thus you can almost always expect investors or licensees to ask about or require FTO information for your technology / IP.

The infringement search can be conducted either manually through a paper based patent database or electronically through an online patent database.  For instance, a manual search can be conducted at the South African Patent Office (Companies and Intellectual Property Commission) and an online search can be carried out electronically through online patent databases from foreign patent offices like the United States Patent and Trademark Office (USPTO) or the European Patent Office (EPO).

It is important to note that there is a difference between a freedom to operate and a patentability (prior art) search.  A patentability search is an act of determining the novelty of a patent whereas a freedom to operate search is concerned with whether claims of a particular invention will infringe any earlier patents (owned by others).  A patentability search seeks to ascertain whether there are existing patents which can prevent the patenting of an invention.

For more information, tools and links, visit the Freedom to operate Toolkit page.


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