Freedom to Operate / Clearance
A freedom to operate (FTO) search, also known as an infringement search or clearance search, is conducted to assess the potential risk of infringing existing intellectual property rights, such as patents, trademarks, copyrights, or design rights, when developing, manufacturing, or commercializing a new product or process.
The purpose of an FTO search is to identify any existing intellectual property rights that could potentially be infringed upon by a proposed product, process, or technology. By conducting an FTO search, businesses and individuals can gain insights into the intellectual property landscape and make informed decisions about proceeding with their planned activities while minimizing the risk of infringement claims.
Here are the key aspects and steps involved in an FTO search:
Understanding the Scope
Begin by clearly defining the scope of the FTO search, which includes identifying the specific product, process, or technology for which freedom to operate is sought. Determine the relevant jurisdictions where the search needs to be conducted.
Identifying Relevant Intellectual Property Rights
Determine the types of intellectual property rights that may be relevant to the product, process, or technology under consideration. This can include patents, trademarks, copyrights, design rights, or any other applicable intellectual property rights.
Selecting Search Databases and Sources
Identify the appropriate search databases and sources to conduct the FTO search. These may include patent databases, trademark databases, copyright registries, design databases, litigation databases, and other relevant sources of intellectual property information. Consider the jurisdictions of interest and choose the databases accordingly.
Conducting the Search
Utilize the selected search databases and sources to search for relevant intellectual property rights that may pose a risk of infringement. This involves using appropriate search queries, keywords, classifications, or other search parameters relevant to the technology or product being searched.
Reviewing and Analyzing Search Results
Review the search results and analyze the identified intellectual property rights. Assess their relevance to the proposed product, process, or technology. Identify any potentially conflicting intellectual property rights that could pose a risk of infringement.
Analyzing Claims and Assessing Risk
Evaluate the claims and scope of the identified intellectual property rights to determine if they cover aspects similar to the proposed product, process, or technology. Assess the potential risk of infringement based on the scope of protection, jurisdiction, and any potential defenses or exceptions that may apply.
Reporting and Decision-Making
Prepare a comprehensive report summarizing the FTO search process, methodology, and the identified intellectual property rights. The report should provide an assessment of the potential infringement risks and recommendations for mitigating those risks. Use the analysis to inform decision-making, such as proceeding with development, modifying the design, seeking licenses, or exploring alternative solutions.
It’s important to note that an FTO search provides information based on publicly available intellectual property rights at the time of the search. However, it does not guarantee freedom from infringement, as there may be undisclosed or pending intellectual property applications or other legal considerations. Consulting with intellectual property attorneys or professionals experienced in FTO searches can provide valuable guidance and help navigate the complexities of intellectual property rights.