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Article · 24.09.2021

What is a freedom-to-operate analysis?

A freedom-to-operate analysis is used to determine whether it is at all possible to commercialise a given product or technology. It provides invaluable knowledge, especially for businesses contemplating major investments in process plant, for instance.

Authored by European Patent Attorney Nanna Meyland Nicolaisen

When do you need to prepare an IP strategy?

In our experience, you would be well advised to think your IP strategy through at a relatively early stage of the idea generation process. When preparing your IP strategy, various analyses may prove very helpful in gaining important market insights.

We often recommend our customers to have a freedom-to-operate analysis (FTO analysis) prepared once they have moved past the initial ideas stages, or when they are able to provide a relatively detailed description of the product.

If you are at an earlier stage of your development process, you may instead benefit from having a novelty search prepared or having the patent landscape mapped out. These are less comprehensive analyses than a freedom-to-operate analysis, but may in some cases be sufficient.

We are always ready to help you clarify the best way to meet your needs, and you are welcome to reach out to us no matter how far you have come in the process.

More about freedom-to-operate and IP Strategy.

Mapping out existing intellectual property rights

Having a FTO analysis prepared is a good idea, especially if you have to do with products and/or markets characterised by fierce competition. The freedom-to-operate analysis will determine the commercial scope and help you avoid or considerably reduce the risk of infringing any third-party patent rights.

In addition, it may ensure that you do not spend time and money taking a course of development which is not feasible, because well-established and patent-active players are already present in the market, ready to assert their rights.

Potential obstacles to commercialising a product

A freedom-to-operate analysis gives you an overview of third-party patent rights within a given geographical and technical area and provides an assessment of whether there are any obstacles preventing commercialisation of your product.

The analysis is based on a variety of database searches that will help determine whether there are any pre-existing patent rights. After the search process, we will conduct a thorough analysis of patent claims and descriptions.

A freedom-to-operate analysis will determine the scope available in the market and clarify whether the product or technology you are developing already exists or is protected by a patent taken out by one of your competitors. Such protection may cover the entire product/technology or only some of the components.

How do you prepare a freedom-to-operate analysis?

The process of preparing a freedom-to-operate analysis involves searching a variety of databases to get a comprehensive overview of any pre-existing rights. The search process will generally produce a large number of potentially relevant documents, which subsequently need to be analysed before a conclusive report can be prepared.

Searching for and analysing pre-existing patents and patent applications is extremely time-consuming, and distinguishing relevant patents from less relevant ones requires extensive experience. The searches often produce a large number of results, and you would benefit greatly from teaming up with a professional adviser who is used to making such assessments.

What does a freedom-to-operate analysis cost?

The price varies greatly, depending on the degree of complexity of the product in question. If you have a relatively simple mechanical product, the analysis will not take long to prepare, whereas complex technologies are much more time-consuming. In any case, you should expect the cost of a thorough FTO analysis to be DKK 50,000 or more.

Preparing a freedom-to-operate analysis usually takes about a month, depending on the product and the degree of contact and communication required during the process. If you have a specific deadline, we will of course make sure to schedule our work accordingly.

Five steps to preparing a freedom-to-operate analysis

1. Start-up meeting to introduce us to the product
2. Mapping-out pre-existing patent rights
3. Reviewing and analysing search results
4. Preparing a report that provides a shortlist of pre-existing rights of relevance to your business
5. Presenting and explaining the report to you

We would be more than happy to assist you based on our longstanding experience. You can reach out to us no matter how far in the process you may have come; we will make sure to find the solution that is best aligned with your needs.


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