What Is a Freedom to Operate Search? | IP Conversations

Why? What? When? How? These are some of the most used words in John’s dictionary. He’s pretty curious about the workings behind what happens in his life, and many of those have to do with the inventions and the workings of intellectual property in the world around him.

John knows by now that patent searches, while not strictly a part of the patent application procedure, are unavoidable for anyone looking to protect their technology. But there are many types of patent searches, and sometimes he’s not sure which ones are the most relevant for a specific scenario. Today, he wants to know more about Freedom to Operate searches, and IP Geek has the answers.

Hello IP Geek!

I already know patentability searches are important and must be done before you file a patent- otherwise, may just be wasting your time and money. But I heard something recently about how if my end goal is to commercialize a product and sell it, I also need to do a freedom to operate search. Is this any different from a normal patent search?

Hi, John!

While there are certainly points of overlap, the objective of a Freedom to Operate (FTO) search is different from that of a patentability search. Patentability searches check if your invention is the patentability criteia -ie, that someone else hasn’t already done it.

In contrast, an FTO search has the goal of figuring out how likely it is that your eventual product or usage of the technology will be challenged by a third party.

Both of these searches can look into similar matters, but the FTO search is generally somewhat more expansive and looks closely into the patent claims associated with relevant and similar technologies. It also focuses on specific jurisdictions, since patent rights are territorial and so are product launches.

That does seem to overlap a little, but the FTO sounds like it would be a more detailed search.

Correct. To do an FTO, you must first identify the relevant features of your product, then check the existing patent database for similar technologies. Once these are identified, a closer reading is done to know the exact rights associated with each technology. This often involves a close reading of the claims with the help of a patent attorney

The end goal is to identify any potential third party rights- since any potential litigation can tie up the product in injunctions and affect the product launch and sales very, very badly.

I see. That does sound exhaustive. And of course, I know by now that it’s important to talk to someone in the patent field or an attorney to know how risky the situation is. Things are a little clearer to me now- thanks IP Geek!