Freedom to operate search or product clearance search is used to create an opinion that a patent holder is free from all legal obstacles to commercialize (develop, make and market) his/her product in a particular geographic region.
Legal Obstacles include:
- Valid Patents
- Trademarks rights
- Existing Designs
It is important to note that while doing any FTO search:
- Only live patents are considered that can affect the FTO, Usually a time period of 20 years is granted to a patent by a region’s jurisdiction.
- Only the jurisdiction covering the market where the product is to be used is taken into consideration while conducting the research.
- All relevant claims need to be found as each individual claim is relevant and affects the operation of the product.
If an FTO is found to be a negative (i.e., live patents with claims covering the invention to be operated in), the body aiming to operate the invention should:
Not proceed to operate and commercialize the invention.
- Invalidate or oppose the relevant patent found in the FTO search.
- Apply for a license or buy the relevant patent.