What You Will Learn
- 1FTO analysis identifies third-party patents your product might infringe before you launch
- 2FTO is different from patentability: your invention can be patentable and still infringe someone else's patent
- 3Three responses to FTO risks: design around, license, or accept with documented rationale
- 4Essential before major product launches, fundraising rounds, and acquisitions
- 5No FTO analysis can guarantee zero risk due to unpublished applications and claim interpretation uncertainty
Having a patent on your product does not mean you can sell it. Your patent gives you the right to exclude others. But if your invention incorporates technology covered by someone else's patent, you might need a license.
Key Distinction
Patentability asks: "Is my invention new?" Freedom to operate asks: "Can I sell my product without infringing anyone else's patent?"The FTO Analysis Process
- Define the product: every feature, component, and process
- Search for relevant patents: USPTO, Espacenet, Google Patents
- Analyze claims: compare patent claims to product features
- Assess risk level: high, medium, or low
- Develop mitigation strategies
Three Responses to FTO Risks
| Strategy | When to Use | Cost |
|---|---|---|
| Design around | Alternative approach exists | $5,000-$50,000 |
| License | Holder willing to license | $10,000-$500,000+ |
| Challenge validity | Patent has prior art issues | $30,000-$100,000 |
| Accept risk | Low enforcement likelihood | $0 upfront |
When to Conduct FTO
- Before product launch
- Before fundraising: investors increasingly expect it
- Before entering a new market
- Before acquisition: see portfolio guide
Limitations
- Unpublished applications (filed within 18 months) are invisible
- Claim interpretation is uncertain until litigated
- Patent holders can file continuation claims targeting your product
Sources
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Disclaimer: This content is for informational purposes only and does not constitute professional legal advice. Please consult with qualified patent professionals before making patent strategy decisions.
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