I am launching a new product. How do I know if I am infringing any patents?
Quick Answer
If you are launching a new product, or bringing your product to a new market, a reliable way of assessing any potential infringement risks is to conduct a freedom to operate search and obtain am FTO / clearance opinion from a licensed patent attorney.
A freedom to operate search, also called a clearance search, looks at existing, active patents within a given region to determine whether your product is likely to infringe the patent claims. It is also useful when done early, while you still have to change the design or the features, rather than after your have already invested significant resources in development and manufacturing
What You Need
A Freedom to Operate Search identifies existing patents that could block and pose infringement risks before your product launch.Â
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Freedom To Operate Opinion
*Why an FTO Search matters
Why do I need an FTO search before a product launch?
A great product loses value if you can’t ultimately bring it to market. A comprehensive review of existing patents shows whether you’re clear to sell, manufacture, or import, and where you may need to redesign if infringement risks exist.
Mitigate patent risks
Identifying blocking patents before launch costs a fraction of what defending an infringement suit costs.
Design Around
Gain insights into existing patents, redesign your product to avoid infringement before you committing to a final build.
Due Diligence
Investors, licensees, and manufacturing partners increasingly expect FTO clearance before committing capital or signing an agreement.
Frequently Asked Questions
When should I do a freedom to operate search?
As early as possible. Ideally while the product or system is still in development. This allows you how feasible commercialization is, and make adjustments to the invention before committing more resources. Depending on your product development timelines, it is advisable to run another search closer to launch if the product has changed since your first check.
Is a freedom to operate search the same as a patentability search?
No. While both searches look at prior art, they have different objectives.
A patentability search asks whether your invention is novel and non-obvious enough to patent, while a freedom to operate search asks whether your product infringes someone else’s existing patent.
What happens if the FTO search finds a patent that could pose a problem?
Depending on the patent claims, possible options include designing around it, licensing it. It is often best to consult a patent attorney to evaluate whether your product would actually infringe or if the blocking patent would hold up to an invalidity challenge.
What is an FTO or clearance opinion?
A freedom to operate or clearance opinion is formal legal opinion that a patent attorney issues after reviewing the results of a freedom to operate search. It provides an assessment of whether the patents found are likely to cover your product and advise on the level of infringement risk. The FTO search looks for the patents; the FTO opinion is your counsel’s judgment on whether risks exist or how significant they are.
What is in a FTO search report
An FTO search report breaks your product down into its individual elements and maps each one against the claims of existing, in-force patents that could cover it. These are active patent rights. It may also flag pending applications that could mature into enforceable patents down the line.
Bear in mind that FTO search reports, unless otherwise stated, are not legal opinions. In order to get a legal, clearance opinion, you need to consult a qualified patent attorney.
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