Nordic Journal

Key elements of a good FTO

Whenever a company is planning to develop and launch a new product or service, one of the major risks it faces is that the commercialization may be blocked by a competitor who holds a patent for a technology incorporated within that product.

This is particularly true in technology sectors where there is extensive patenting such as the pharmaceutical sector or sectors where Patent Assertion Entities/Non-Practicing Entities are active.

In order to minimize this risk, companies normally perform a Freedom-to-operate analysis (FTO), to get reasonable expectation that launching a product will not result in a costly lawsuit.

During the more than 30 years of performing FTO searches, we have identified some key elements we believe provide solid a basis for high quality FTO search.

Experience and professional competency of the searcher

It is important that the FTO search is performed by a person skilled in the art and with knowledge of the prior art. It is also important that he or she understands the business aspect of the FTO analysis.

At Nordic Patent Institute, FTO searches are performed by highly educated, experienced patent examiners at the Danish and Norwegian Patent Offices. They are equipped with the best available search tools and databases. Patent examiners are extensively trained in prior art searching and in patent examination which means they can provide the results of a prior art search as well as provide assessments from a patent perspective.

Clear and open communication between the customer and the searcher

Before starting the search, the customer and the examiner performing the search should agree on the initial search scope. At this point of time, the examiner will apply his skills and intellect to drafting a broad search scope, in close communication with the customer.

It is essential that the searcher understands the purpose of the search and its legal implications. All potential IP rights should be uncovered (e.g. the invention in question could be a selection invention of a broader invention).

Accessible and useful report

The search report should be set up in an easy and organized manner, giving a good overview of the result. It should contain links so that the customer can quickly click forward to further information on the references found. The report should be built with the sole purpose to make life easier and more time-saving for the customer.

While an absolute guarantee of freedom to operate will never be attainable, a good FTO analysis is the best way of minimizing risks that can save a company significant resources.

If you would like more information on our FTO searches or if you would like a quotation for a specific task, don’t hesitate to contact us.

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