What is a Freedom to Operate (FTO) Search?

[taniyaakter]

Freedom to operate (FTO) allows your company to create, produce and market goods without incurring legal obligations to third parties (such as other patent holders).

There are only two cases where the FTO has a completely positive outcome. One case involves a business licensing the patent, in which case the business is aware that, in order to prevent contractual breaches, it will not be liable for patent infringement. In another case, it is found that the third party patent was not infringed or is invalid, at which point the status of the FTO will be finally determined.

In certain circumstances, a business will rely on both grounds (for example, the business may rely on the non-infringement of a patent claim and the invalidity of another claim).

A freedom to operate (FTO) search is a comprehensive China Phone Number Library investigation of existing patents, trademarks, and copyrights to determine whether a particular product, process, or service infringes the rights of others. It assesses a company's legal freedom to operate in a particular market or introduce a new offering without infringing on any existing intellectual property rights.

Analysis What is Freedom to Operate ?
Violation Analysis
The United States Code states:

Except as otherwise provided in this Title, any unauthorized person who makes, uses, offers for sale, or sells, within the United States or imports into the United States any patented invention during the term of the patent, thereby infringes the patent.

In this context, there are various ways in which infringement can occur. The term “literal infringement” refers to the intended product actually infringing the written claim.

The “doctrine of equivalents,” a judicially developed doctrine, attaches infringement liability even in the absence of literal infringement, even when the infringing device or process does not fall within the literal scope of a patent claim, but is nevertheless equivalent to the claimed invention.

Infringement may be “direct,” “contributory,” or “inducible.” Making, using, recommending, selling, or importing into the United States any patented invention without authorization for the term of the patent is a direct infringement of the patent.

When a device is claimed in a patent and a third party supplies a product that can only be legitimately used to create the claimed device, this is an example of indirect infringement. Infringement that is “contributory” or “inducible” is referred to as indirect infringement in the US.