Do You Have Freedom to Operate?

The telegraph, telephone, and lightbulb are just a few examples of inventions that were designed and constructed independently by multiple inventors almost exactly at the same time in history. Out of these three, the telephone is a particularly noteworthy example. The patent for it was reportedly filed by two different engineers – Elisha Gray and Alexander Graham Bell – independently on the very same day. According to one popular, albeit somewhat fabled, telling of that story, Bell arrived at the patent office an hour or two before his rival Grey, causing the latter to lose his rights to the invention forever.

Even though this anecdote is unlikely to be true (patent laws at the time would grant the rights to the person who was first to invent a product, not first to file the patent for it), there is an important lesson to be learnt here for all those who try to commercialize their ideas, designs, and products. The lesson is that no matter how original and innovative an idea might appear, there is always a chance that someone else might have already conceived it before. Entrepreneurs and innovators should keep that in mind so that they won’t infringe on anyone else’s valid intellectual property rights while trying to sell a new product.

If you are an entrepreneur, how can you ensure that you can safely launch a new product without risk of IP infringement? A Freedom to Operate search is an important tool that can help you achieve that goal. Read on to learn what Freedom to Operate is and what you can do to make sure your product has that kind of clearance.

Brief Overview of Freedom to Operate

Simply speaking, Freedom to Operate (FTO) is the right to test, market, or sell a product or service in a specific area. Such right can only be secured by establishing that a given product doesn’t infringe on any patents or other rights guaranteed by intellectual property protections other products or ideas may already enjoy. FTO is also known as the right to use.

You can ensure that you have FTO by performing a freedom-to-operate search or analysis. Such analysis will review already existing patents as well as IP records such as trademarks or copyrights that may apply. Importantly, an FTO search is not the same as a patent search; rather it is much more thorough and its scope is much broader. Unfortunately, it is usually much costlier than a patent search too. Often, an invention may be patentable yet still infringe on someone else’s IP rights making it impossible to commercialize it.

Freedom to Operate also includes compliance with governmental regulations pertaining to the market where a given product is supposed to be sold. For example, if a company wants to sell food or medicines in the U.S., their products must comply with the safety standards set by the U.S. Food and Drug Administration (FDA).

Should You Get an FTO Analysis?

Given how costly an FTO analysis can be, most entrepreneurs will think twice before ordering one. If you are preparing to launch a new product, it is usually best to consult with an experienced IP attorney whether you should pursue an FTO search or not. Our attorneys at BRADFORD, LTD. possess the needed expertise to provide you with trustworthy advice in that regard. If you have any questions with regard to FTO issues or any other matter related to intellectual property rights and protection, we invite you to schedule a consultation with one of our experienced lawyers.

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Bradford LTD specializes in IP protections and maximization for startups and small businesses. We also provide scaled legal services to our clients, including fractional legal counsel and value-based rates. From trademark, copyright and service mark protections to patent protection and outside inside counsel, we help position entrepreneurs and owners for long-term success.

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