The technological world is getting overcrowded by each passing day. Each product, be it an automobile or a toy, is a combination of functional concepts and diverse ideas, protected by Patents, Design Registrations, and Utility Models. For instance, a highly technologically intensive device like a part of a satellite vehicle is safeguarded by more than 30 various patents to protect each component of the final product.
In this scenario, one should have a clear idea about the Proprietary Ownerships around the product before initiating the product and sometimes even before initiating the designing. The phrase Proprietary Ownership means that the product features are secured by numerous intellectual property instruments like patents or designs.
What is Freedom to Operate Search?
Freedom to Operate Search is defined as an approach that involves a patent search for patents in a legal jurisdiction. It is implemented to examine or check the legal protection of the invention or technology across the jurisdiction(s) where product launch is planned. The FTO search in simple words gives an idea about patent infringement in any nation where a company or an organization wants to launch its product.
There is a huge risk if a product is launched without performing this search. Newly launched products are most vulnerable to infringement lawsuits that can threaten the business and its overall image. According to Sagacious “The cost of IPR litigation is vast and may cause irreparable financial harm to the business altogether. Thus, the best way to avoid these difficulties is to undergo an FTO investigation before investing time, money, and effort in a product launch.”
FTO search is therefore meant for understanding the total degree of freedom that is accessible by the business to develop and design a new technology for the market. The goal of the business is to create a product that will not infringe on a registered design or a patent.
FTO should be done with a lot of care before initiating manufacturing activities. Freedom to Operate study unearths details that help companies take decisions on whether the product should be manufactured or not, or rather how it can be released without violating the infringement law of another issued patent.
Role of Freedom to Search in the Product Launch
The result of exhaustive freedom to operate analysis includes strategic importance in taking any of the below stated decisions.
Selection of product Features and Design: Companies can develop a new product. In this case, the FTO determines whether the proposed product can infringe any IP. If not, then the organization can produce the products without any legal repercussions.
Selection of the Manufacturing Process: Companies can develop a new manufacturing process. In this case, the FTO determines whether the proposed manufacturing process can cause a violation or not. If not, then the organization can produce the products without any legal repercussions. However, if the process is violating any patented process, then the search report also offers the name of the licensing inventor and details of patented process which can be used for further licensing activities.
Selection of the Packaging Style: Labeling and packaging of the proposed products play a major role at the later stage. The FTO investigations offer insights to preclude the infringement possibilities of other Design Patents that also cover the designs of the packages.
Selection of the Country-Wise Markets: Patents differ from country to country. This means an applicant might not have protected its invention through patents in every part of the world, therefore you can strategize and launch the product in regions where the patent is not valid or enforceable.
The Role of Freedom to Operate Search in Competitive Intelligence
The freedom to operate search plays a vital role in competitive intelligence in the following ways.
- FTO offers information on which patents might be infringed if the product is launched and helps in designing around the patented inventions for launching an infringement free product.
- FTO search provides information on current state of the patent legally. i.e. whether the patent is currently enforceable in the region of interest or not.
- FTO also covers pending applications relevant to a product or technology and therefore provides information on future competition, as the patents filed shall majorly turn into a viable product.
- FTO helps in identifying potential collaboration options so that a non-infringing product is launched.
- FTO also gives new product ideas based on expired patents.
Final Thoughts
Conducting an FTO search is therefore a highly recommended step before launching a product, specifically in a highly competitive market. Also, as there are many components involved in developing a product, FTO search on even smaller features might be required. It is always prudent to have the FTO search done through professionals and seek a legal opinion over the analysis. That should help you in launching an infringement free product and identifying potential licensing options that shall be helpful in further strategizing product development.
