what does FTO mean in terms of patents and intellectual property?

What does FTO mean in terms of patents and intellectual property?

Freedom to Operate: What is it?

The term “freedom to operate” (FTO) relates to whether it is economically “safe” for you to produce or market your goods in the nation in which you intend to do so without violating pre-existing rights of other parties.

I’ve created a new medical gadget. May I sell it in the UK without fear of legal action for patent or design violation when I make it available for purchase?

In this case, you are free to produce if there are no third-party registered rights in effect in the UK. And market the new medical device without interference from FTOs. Let’s assume, however, that specific registered rights already exist. In that instance, you risk ceasing sales and having to pay out compensation or royalties. Or even facing legal action and infringement claims.

How can I determine the amount needed by checking FTO?

The best action to reduce the likelihood of violating already-existing IP rights is to do an FTO search. Consider FTO searching and analysis on a scale from 0% to 100%, with 0% not considering FTO (and hence, the highest risk of infringement of third-party rights) and approaching 100%, representing extensive and significant Freedom To Operate searching and analysis. It’s impossible to know for sure that you have FTO in reality.

The amount of FTO work you should undertake will depend on some variables, but as a general rule, you can use the price of creating and launching a new product. Start your FTO research and analysis early when making a significant investment.

How can I lower my chance of losing my ability to operate?

You must first identify any pertinent IP to determine the degree of certainty that you have FTO. These will be patents, trademarks, or other intellectual property rights recognised in the nation. The nation where you desire to manufacture or market your goods. The next step is to decide if there is a danger of infringement on those rights. At the same time, other registered and unregistered rights may exist. We’ll concentrate on patents in this article.

There are ways to lessen this burden, and one of them is to hire a professional to handle it. Those will reduce the chance of overlooking crucial third-party IP and prevent the analysis of any irrelevant IP.

The following choices can help you maximise the efficiency of your Freedom To Operate searching while minimising expenses:

  1. Limit your search to the nations where you plan to conduct business; if there are several nations to consider, you should focus only on the significant areas where protection may be in effect. Are competitors likely to have an independent escort in other national countries, for instance, if they lack patent rights in Europe or the US? The possibilities are slim if your product happens to be a medical gadget.
  2. Limiting your search to a few key competitors or their technical areas will probably result in significant cost savings and quick gains that will raise the likelihood of an FTO.
  3. You can later broaden your search if you require greater assurance.

What are you observing?

A tyre (without any new technical features added) is nothing new and must establish patents on new technologies, so such an application will never progress to issuance. This first disclosure, or “A”, relates to an active patent application. Only after the patent office approves the application as defining novel technology is a patent given. Then it is reissued as a “B” publication. Following a “B” publication, the rights that may enforce are minute in the patent claims.

To distinguish between a granted or registered right as opposed to an application, you must be careful. Although applications can only be exact once approved, they nonetheless present issues since they generate doubt about the extent of protection that could ultimately gain. Consider a scenario in which the patent application for the tyre has a feature that appears to be novel but is not like it or not set out in the claims, and I want to create a tyre with this feature. If the rights holder restricts the scope of their protection to include this functionality, I will violate the patent once the application is approved.

Due to the requirement for a more precise definition of protection, pending rights are frequently more complex than those already awarded. Monitoring the development of patent applications is crucial; if necessary, we can take steps to prevent such issuance.

In either scenario, I advise that you seek legal counsel regarding the “scope” of those rights, as interpreting patent claims is frequently a challenging assignment best left in the hands of a patent expert.

What happens if I’m liable for violating IP rights even though I’m unaware of them?

It is never accurate to say that you have 100% Freedom To Operate. No matter how thorough the search is, there is always a danger of violating the rights of third parties. IP violation has consequences, although it rarely leads to a month-long case before the High Court. But there is a chance for this. If something happens, don’t freak out; instead, ask a professional for help immediately. Never disregard correspondence from a rights holder because things will only get worse.

Obtaining a licence, redesigning the product to escape the scope of the IP proper for subsequent goods, or even attempting to demonstrate that the enforced IP right is invalid are all potential solutions to the problem. The price associated with each choice varies.

Six aspects concerning Freedom To Operate to keep in mind

Always be sure of the following when it comes to FTO:

  • Think about looking for and analysing a new product in its early stages of development.
  • Based on the time and money required to bring your product to market, consider the amount of Freedom To Operate assurance you need.
  • When searching, grab the low-hanging fruit first; consider your main rivals and their technical areas, and then focus your search in that direction.
  • Focus only on essential markets
  • And comprehend if third-party rights are granted (having confirmed coverage) or pending (hence of unclear scope), and consider engaging a specialist accordingly — FTO searching expenses rely on the certainty required, and you can reduce these by working with a professional