Freedom to Operate & Design Around Advice

Why It’s Important Before Launching a Product

Before launching a new product, ensuring it doesn’t infringe on existing intellectual property (IP) rights is critical. Freedom to Operate (FTO) searches and design around advice provide clients with the clarity and strategy needed to enter the market confidently. By identifying potential patent conflicts early, these services help clients avoid unexpected legal challenges that could disrupt their launch, damage their reputation, or drain resources in litigation. Acting proactively at this stage ensures the product can be commercialized without infringing on others’ rights, offering peace of mind and a smoother path to market success.

Difference Between Novelty Searches and Freedom to Operate Searches

While both novelty searches and FTO searches involve reviewing existing patents, their purposes differ significantly. A novelty search, conducted during concept development, determines if an invention is new and patentable by comparing it to prior art—focusing on securing a patent for the client’s idea. In contrast, an FTO search, typically performed closer to product launch, assesses whether a product can be made, used, or sold without infringing existing, enforceable patents held by others. Essentially, novelty searches are about protecting your IP, while FTO searches are about avoiding violations of others’ IP—a key distinction that shapes their timing and scope.

How FTO Searches Inform Designing Around Others’ IP Rights

FTO searches reveal patents that might block a client’s product as designed, pinpointing specific features or processes that overlap with protected IP. Armed with this insight, IP counsel provides design around advice, suggesting modifications to sidestep these patent claims while preserving the product’s core functionality and market appeal. For example, if a search uncovers a patented component, counsel might recommend an alternative material or method that achieves the same result without infringement. This strategic guidance ensures the product remains innovative and competitive, aligning with legal boundaries as it prepares for launch.

Benefits and Cost Savings for Clients

The benefits of FTO searches and design around advice extend beyond compliance—they’re a smart financial move. By identifying and resolving IP conflicts before launch, clients avoid costly infringement lawsuits, which can involve damages, legal fees, and injunctions halting sales. Redesigning a product post-launch or pulling it from the market is far more expensive than making adjustments beforehand. Additionally, a clean FTO analysis enhances a product’s attractiveness to investors and partners, signaling reduced risk and boosting its commercial potential. In short, these services save money, protect reputation, and pave the way for a successful rollout.

What’s Involved in Performing FTO Searches

Conducting an FTO search is a meticulous process tailored to the product and market in question. It begins with defining the product’s key features and intended uses, followed by a comprehensive search of active patents in relevant jurisdictions—using databases like the USPTO, EPO, and WIPO. The search focuses on claims within these patents, as they define the legal boundaries of protection, rather than just the invention’s description. IP counsel then analyzes the results, assessing whether any claims overlap with the client’s product and identifying risks. The final step involves delivering a detailed report and, if needed, design around recommendations to mitigate those risks effectively.