FTO/Clearance Search

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A freedom-to-operate (FTO) or Right-to-Use Search or Right-To-Market or Clearance Search is a search done on issued patents or on pending patent applications to determine if a product or process infringes any of the claims of the issued patents or pending patent applications. A clearance search may also include expired art that acts as a ‘safe harbour’ permitting the product or process to be used based on patents in the public domain. These searches are often performed by one or more professional patent searchers who are under the direction of one or more patent attorneys.

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When to conduct a FTO search ?

FTO search can be conducted at any stages of product development/ life cycle in thereby to track the direction of product development and its commercialisation.

In the early stages of FTO search helps the developers to develop non-infringing products, processes or technology with respect to the relevant patent from third parties.

However, one can conduct FTO search right before launching or commercialising their product, process or technology in order to avoid patent litigation which involves high cost.

Pros  of FTO:

  • FTO search helps the R&D team to find out the third parties patent and design the product accordingly.
  • FTO search also helps the developer team to find out some new ideas and thoughts from the expired patents provided by us.
  • FTO search is very helpful in case of potential licensing, cross- licensing, merger or acquisitions.

We keep these things in our mind for an FTO search:

  • We normally only search patents, since the issue is whether or not the client would infringe an in-force patent (i.e. alive patent).
  • We carefully read the Claims of each patent we find that might be relevant. Because, it is the Claims, not the descriptions found elsewhere in a patent, which determine what it would take to infringe that patent.
  • Only in-force patents are of concern, so make sure you limit your date range to the last 20 years.
  • Search approaches are limited to the geography where the product of interest is manufactured and commercialized.
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