1. Learn
  2. Patents

Patent Freedom to Operate (FTO): What It Means, Why It Matters & How to Do It

July 14, 2025 by Amit Kumar

Learn about Freedom to Operate (FTO) in India—how to identify patent risks, conduct FTO analysis, and make informed decisions to avoid infringement and strengthen IP strategy.

What Is Freedom to Operate (FTO)?

Freedom to Operate (FTO) is the legal ability to make, use, sell, or import a product without infringing someone else’s active patent rights in a specific country.

Even if your invention is original and patentable, it may still infringe an existing patent—which can result in lawsuits, injunctions, or product recalls.

FTO ≠ Patentability
A patent search checks if your invention is new,
An FTO search checks if you’re legally safe to commercialize it.

Why is FTO Important?

1. Avoid Lawsuits

Prevent unintentional infringement of third-party patents

2. Secure Funding

Investors demand FTO clearance before investing

3. Product Launch Safety

Reduce risk of product ban, customs seizure, or injunction

4. Global Expansion

Ensure you’re safe to operate in international markets

5. IP Strategy Alignment

Identify blocking patents early to plan around or license them

6. Design Around Risks

Spot red flags and innovate safely around active patents

What Happens If You Don’t Do FTO?

  • Patent infringement lawsuits
  • Injunctions stopping product launch
  • Legal damages and licensing settlements
  • Delayed timelines and re-engineering
  • Investor exits or failed due diligence
  • Loss of goodwill and market share
FTO is not a Luxury

It's a legal necessity before scaling or commercializing

How to Conduct an FTO Search – Step-by-Step

Step 1. Design Around Risks
  • What are the core features of your product/process?
  • What are its technical components or ingredients?
  • Where will it be made, sold, or used?
FTO is jurisdiction-specific

You may have FTO in India but not in the US or Europe

Step 2: Conduct a Patent Search (Focused on Active Patents)

Search Patent Databases like

  • InPASS (India)
  • Espacenet (Europe/global)
  • USPTO (USA)
  • WIPO Patentscope (PCT)
  • QuickCompany E-Register Tool

Search using

  • Keywords related to technology
  • Patent classification codes (IPC/CPC)
  • Names of competitors or known players
Search for Granted Patents

Filter results to show only granted, in-force patents in your target countries.

Step 3: Analyze Relevant Patents

For each relevant result:

  • Review the claims—especially independent claims
  • Compare with your product's features
  • Check expiration date and jurisdiction
  • Evaluate if you're infringing directly or indirectly
✅ No Risk

If your product falls outside the scope of the claims = safe

❌ High Risk

If your product overlaps

Step 4: Evaluate Legal Status & Ownership

Make sure:

  • The patent is still active (not expired or lapsed)
  • You’re targeting the correct country
  • No assignment or licensing makes it complex
  • There’s no ongoing litigation involving the patent
Step 5: Document Your FTO Findings

Create a formal FTO Report including:

  • List of key patents with risk level (High/Medium/Low)
  • Claim charts comparing patent scope vs product
  • Suggested next steps (license, design around, challenge, etc.)

This document becomes critical during due diligence or investor discussions.

What If You Find Blocking Patents?

Create a formal FTO Report including:

  • List of key patents with risk level (High/Medium/Low)
  • Claim charts comparing patent scope vs product
  • Suggested next steps (license, design around, challenge, etc.)

This document becomes critical during due diligence or investor discussions.

Option: Design around

Modify your product to avoid claimed elements

Option: License the Patent

Negotiate permission with patent holder

Option: Design around

Modify your product to avoid claimed elements

Option: Challenge Validity

Oppose or invalidate the patent (pre/post-grant)

Option: Change Market Strategy

Avoid countries where patent risk is high

FTO vs. Patent Search vs. Patentability

Criteria FTO Search Patentability Search State of the Art Search
Purpose Check for infringement risk Check novelty of invention Track tech trends
Focus Active patewnts with enforceable claims All prior art (active + expired) Publications and trends
Result Safe to operate opinion Decision to file a patent R&D strategy input
Conclusion: Freedom to Operate = Freedom to Grow

FTO is the safety net every business needs before bringing a product to market. It’s especially critical for:

  • Startups launching new hardware, software, or pharma
  • Investors validating IP-backed businesses
  • Companies entering new geographic markets

A thorough FTO check today can save crores in future litigation and protect your innovation’s path to success.Don’t assume you’re safe—know you’re safe.

Frequently Asked Questions (FAQs)

Q1. Is FTO mandatory before patent filing?

No, but it’s essential before commercialization or raising investment.

Q2. Can I do an FTO myself?

Basic searches are possible, but legal interpretation of claims should be done by a patent expert

Q3. Does an expired patent affect FTO?

No. Expired or lapsed patents cannot be enforced.

Q4. Do I need FTO in each country I operate in?

Yes. Patents are territorial rights. You need FTO in each country of sale, use, or manufacture.

Q5. How much does a professional FTO cost?

Rs 25,000 – Rs 2,00,000+ depending on complexity, number of jurisdictions, and industry.

Free FTO Patent Search
Search Patents

Related Articles