Freedom To Operate (FTO)

Question 1
How can a potential product be cleared of patent landmines?

Answer 1
Patent landmines can be cleared by a Freedom to Operate (FTO) report. FTO begin first by conducting a search of patent literature for issued or pending patents and obtaining a legal opinion on whether the product, process or services may be considered to be infringing an existing patent. This can be done trough companies that offer FTO analyses.

Question 2
What are the limitations of patents?

Answer 2
The Limitation in a patent may arise when the patent protected are:

1. Territorial - Certain companies limit their protection according to their business strategies. Therefore, if the concerned is not covered by the patent, there is FTO.

2. Limited by duration - The maximum period of 20 years are given for protection.
After the expiry of the term, the patent is considered to be in the public domain and maybe used freely by any one.

3. Limited scope - The most important part of the patented document is the claim which determines the scope of the patent and all the aspects of an invention. Aspects that are not covered by the claims are not considered to be patented.
If there are one or more patents that would limit the FTO, the company has to rely on other common strategies to obtain the FTO, such as:

1. Purchasing the Patent or In-licensing
This has to be done by obtaining a written authorization from the patent holder to use the patented technology for specified act, market or period of time. The agreement would largely rely on the terms and conditions.

2. Cross – Licensing
This is done when 2 companies exchange licenses. However, this requires confidence in both companies and needs a well protected patent portfolio that is of value to the potential licensing partners.

3. Inventing Around
An alternative way, is to invent around the inventions by making changes to the product or processes in order to avoid infringing on the patents owned by others. The FTO operates around the processed patents and are limited by it. Therefore, it is possible to derive an end product which is of the same or similar result without infringing or arising the need to pay licensing fee to the owner.

4. Patent Pools
This usually involves 2 or more companies practicing the related technology, whereby, the put their patents into a pool to establish a clearing access for patent rights. These are normally used by companies for inventions that are essential to comply with the certain standard specification.

Question 3
How is a Freedom to operate derived from patent protection?

Answer 3
The new product can be patentable if there are no patents blocking the access to the market. Instead of keep the new technology as a secret, it is well of protected by the patent to ensure a greater degree of freedom to operate. The patent will provide the company with the exclusive rights over the new technology which would ensure that nobody else can use it without prior authorization. No one else will be able to obtain exclusive rights over the technology in the future.

There is a limit on the extent which a patent owner has the freedom to operate or use such patented invention. It does not provide the right to commercialize the protected technology but only the right to exclude all others from commercializing it.

There maybe be overlapping or complementary patents owned by different parties that are mutually blocking the access to the market. In addition there may be government regulations that are not directly concerned with the intellectual property that may restrict the access to market of a patented invention. Despite this, it is important to stress that "freedom to operate" is one of the reasons why a number of companies apply for patent protection.

Question 4
What are the benefits of a FTO?

Answer 4
All the steps are taken with the priority to minimize facing any potential risk and expensive litigation. All companies are well - advised to look into the matter earlier during the research and commercialization process. Discovering the FTO prior to the launching a new product is, therefore, a way of minimizing but not eliminating the risk of your product infringing the patents owned by others.

It is important to point out that a certain degree of certainty to the "freedom to operate" will not be attainable. A good patent search may provide a company with some indication that a new product is unlikely to infringe other patents, but no patent search is perfect or full proof. There is a practical limit to the time and money that can be spent on a search.