A freedom-to-operate (FTO) search is typically carried out to determine whether launching a new product could infringe on existing third-party patents.

An FTO search involves identifying patents that have been granted in the countries of interest and evaluating whether the product might infringe any of the patents that are in force.

While carrying out a FTO search is logical and often recommended, it’s also highly complex and no search can guarantee absolute freedom to operate. The sheer volume of patents, combined with time and resource limitations, makes complete certainty unattainable.

Due to the complexity and time required, FTO searches tend to be expensive, and are often more costly than a standard patentability search. However, there are ways to reduce the cost without undermining effectiveness:

• Narrow by Competitors: Rather than searching across all patents, start by reviewing those held by your competitors since these are most likely to own patents relevant to your business.
• Focus on Core Features: Prioritise searching patents related to the core innovations in your product. For instance, if a hairdryer includes an improved nozzle attachment, the search should focus on this aspect rather than on hairdryers per se
• Limit by Geography: Focus only on countries relevant to the business rather than searching patents worldwide. These countries might include places where you intend to manufacture, store, import, market, sell or use the product. Therefore, if you only intend to launch in the UK and the product is not being manufactured overseas, the search should primarily focus on UK patents and on patents that could have effect in the UK.

Why consider an FTO search?

Conducting an FTO search helps you identify potential patents that may pose a risk before launch, avoiding the risk of infringement proceedings, costly redesigns, or delays in market entry. Importantly, identifying any relevant patents can allow you to take proactive steps such as modifying the design, seeking a licence, or adjusting your commercial plans.

An FTO search should be considered an essential part of any product development and launch strategy, particularly if your business is investing in product development, launching in a new jurisdiction, or entering a crowded technology space. If you’d like to explore whether a FTO search could be useful in your specific situation, we’d be happy to discuss it with you.