A Freedom to Operate (FTO) analysis invariably begins by searching patent literature for issued or pending patents, and obtaining a legal opinion as to whether a product, process or service may be considered to infringe any patent(s) owned by others. Many private law or IP firms offer such analyses as part of their legal services to clients.
Because of FTO, patent lawyers and other IP experts will tell you to secure international patents while you wait for your U.S. patent to pass through the patent office (or USPTO). Patent protection isn’t always enough to secure FTO, but getting a patent for each market in which you want to sell is a good first step.
For example, let’s say the U.S. government gave you a patent for a new kind of speaker. As the patent holder, you have the freedom to market and sell your speaker while no one else can. If it’s a brand-new kind of speaker, you can also sell it in other countries without getting their patents.
However, your competition also has the freedom to operate in other countries, since you only have a U.S. patent. Perhaps someone else has patented the same kind of speaker in Europe, and now neither of you have the FTO to sell your speakers in each other’s markets.
Whenever a company is preparing to develop and launch a new product, a major peril, particularly in technology sectors where there is extensive patenting, is that commercialization may be blocked by a competitor who holds a patent for a technology incorporated within that product. This is why many companies, at an early stage, seek to secure their “freedom to operate,” i.e. to ensure that the commercial production, marketing and use of their new product, process or service does not infringe the IP rights of others.
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