When you develop and sell a new product, process, or service, it is important to conduct a freedom to operate analysis or study beforehand to reduce the risk of violating patent laws.
Our USPTO registered patent attorney recommends a professional freedom to operate analysis or study by a licensed patent practitioner before developing and selling a new product, process, or service.
What is Freedom to Operate?
Freedom to operate (FTO) is the freedom to make, use, and sell a product in a certain country without violating valid or enforceable patent claims and other relevant patent laws.
An evaluation of freedom to operate, also known as a freedom to operate analysis or study, gives you the knowledge that your new product, process, or service will not infringe on the intellectual property rights of others or violate relevant patent laws.
Entrepreneur Note: In addition to new inventions, businesses frequently pursue FTO studies for new products. This is done to ensure the new product does not infringe on the intellectual property rights of others. Contact us to conduct a freedom to operate patent search and find out if you are free to make, use, and sell a product in the U.S.
Freedom to Operate Study vs Infringement Study vs Clearance Study: What’s the Difference?
Freedom to operate studies, infringement studies, and clearance studies are similar and related practices that can significantly reduce the risk of violating intellectual property laws. Carson Patents offers all three of these services. Our USPTO registered patent attorney can help you decide which study to pursue.
What is a Freedom to Operate Analysis?
A freedom to operate analysis or study provides information on elements or aspects of your new product that may potentially infringe on valid or enforceable patent claims and patent laws. The study can also encompass all steps of developing, making, or selling the product that are relevant to intellectual property laws.
An FTO study by Carson Patents includes an evaluation of the product or process, a determination (reasoned opinion) of whether there is freedom to operate in the U.S., and a written report. This service can optionally include a consultation as well as an evaluation/determination for potential patentability.
We highly recommend seeking an FTO study in the early development stage — before commercialization, financing rounds, manufacturing, and selling your product. This allows you to proactively address potential infringement issues, find ways to work within existing patent boundaries, acquire any necessary licenses, and confidently move forward with the commercialization and market launch of your product.
It is especially important to conduct an FTO study early on in the product development process if you are in a particularly litigious, competitive, or patent-saturated market.
In other words, we recommend conducting a freedom to operate study early on in the product development process so that you know you will not run into legal complications down the road.
Inventor Note: An FTO study can even reveal whether your new product, process, or service is patentable. Learn more about patentability. Carson Patents also offers patentability studies for inventors seeking to patent their inventions. Learn more about our patentability study service.
What is an Infringement Study?
An infringement study tells you whether your product infringes on any valid or enforceable patent claims.
An infringement study conducted by Carson Patents includes a report and/or consultation about the opinion and reasoning for the determination if there is infringement or potential for infringement.
Pursuing an infringement study can mitigate the risk of facing accusations of willful patent infringement.
What is a Clearance Study?
A clearance study tells you whether an activity conducted without authority will infringe on any valid or enforceable patent claims for a product or process as well as other relevant intellectual property laws. In other words, a clearance study tells you whether you have the legal right to pursue an activity.
While an FTO study encompasses all aspects of the product and processes for developing, making, and selling the product, a clearance study is focused on a specific activity.
What is an activity for a clearance study? An example of an activity is the exporting of a product to a new foreign region. A clearance study can be conducted to determine whether you are free to pursue this product-selling activity without violating patent laws.
A clearance study can also be conducted to determine whether a competitor’s product or process is infringing on your protected products or processes.
A clearance study conducted by Carson Patents includes a report and/or consultation about the opinion and reasoning for the determination if there is infringement or potential for infringement. A clearance study includes an evaluation and a determination (reasoned opinion) in addition to a written report. The clearance study will also include an evaluation/determination for the patenting potential of your product.
Contact us for a clearance study to find out whether a product-selling activity is infringing.
Can an FTO Study, Infringement Study, or Clearance Study be Conducted for Regions Outside the United States?
FTO studies, infringement studies, and clearance studies are conducted by country. We recommend conducting a study for each country in which you operate or plan to operate.
We provide FTO studies, infringement studies, and clearance studies for the U.S. We can provide a FTO, infringement, or clearance study for other countries if requested. However, please note that our patent attorney is only licensed in the U.S. We recommend seeking the services of a patent attorney specifically licensed in the country where you are operating or planning to operate.
5 Reasons Why FTO Studies are Important
- Avoid costly legal battles: An FTO analysis can pinpoint potential patent infringements and other violations of patent law, helping you avoid unintentional infringement.
- Make informed business decisions: Information from an FTO study can help you negotiate licenses, explore alternative methods of production, and even redesign your product around existing patent claims to avoid infringement.
- Gain competitive knowledge: A thorough FTO analysis can also provide valuable insights into the market landscape and forecast potential market developments, giving you a competitive edge as you develop and prepare to launch your product.
- Minimize investor concerns: Conducting an FTO study early on can help alleviate investor concerns regarding the feasibility and market potential of your product.
- Due diligence for patent litigation: In the event that you do face accusations of willful patent infringement, your FTO study can be used to defend your company and product, substantiating your compliance with patent laws.
Important Note: Although you can increase your certainty of FTO by conducting thorough research and taking proactive steps to mitigate risks, achieving absolute certainty is often an unattainable goal. An FTO determination cannot guarantee that you wwill not be sued. How certain you must be depends on your situation, such as how patent-focused your market is and how often patent litigation occurs. You can substantially increase your level of certainty by consulting with a registered patent practitioner.
6 Steps to Conduct a Freedom to Operate (FTO) Study
- Define scope of search: Thoroughly understand your product and goals, from product features to development processes to considered markets, to define the scope of your search.
- Find and identify relevant patents and patent laws: This process involves a prior art search, which can include active registered patents, expired patents, and even non-patent literature. A patent practitioner can help you identify the most relevant information for your FTO study.
- Review search results: Review the identified patents, patent laws, and non-patent literature for validity and relevance to your product. A patent practitioner can determine the elements or aspects of your product that could potentially infringe on existing patents or otherwise violate patent laws.
- Evaluate potential for issues: Determine whether there is infringement or potential for infringement. It is important to consider the potential for all types of infringement. A patent practitioner can help you determine whether there is infringement or potential for infringement.
- Document findings: It is important to properly consolidate and document your findings for the review of others, such as product development teams or investors. Your documented FTO study can also be used in the case of patent litigation. A patent practitioner can provide a formal determination (reasoned opinion) of whether there is freedom to operate based on the study.
- Continue monitoring patent landscape: It is advisable to continue searching for relevant new patent registrations and keep an eye on patent litigations in relevant industries so that your new product will not violate patent laws.
It is crucial to conduct a thorough yet focused FTO study to minimize the risk of infringing on the intellectual property rights of others. We recommend consulting with a patent practitioner for a freedom to operate determination, especially if high certainty is needed.
Freedom to Operate Study, Infringement Study, and Clearance Study Help Available Online
Conducting a freedom to operate study means you have the knowledge to develop, make, and sell your invention without legal liabilities to others. A freedom to operate analysis is a good investment to avoid trouble down the line when developing a new product.
Consulting with a registered patent practitioner is recommended to ensure that you conduct a comprehensive study to guide each step of developing your product and protect your business.
Carson Patents offers FTO studies, infringement studies, and clearance studies for those developing a new product, process, or service. Our freedom to operate study and infringement study services begin at $3,200. Contact us for a free online video consultation to learn more about our services.