The One-Time FTO vs Recurring FTO Debate: A Closer Look

One Time FTO vs Recurring FTO  

There are basically two factors that influence the strategy for picking either one-time FTO or recurring FTO. These include: 

1. Research and product commercialization timeframe: Few items or features, say 8 to 10 months, require less study work and less time to reach a market. A single FTO study is sufficient for these items because there won’t be many patents published in that little period and the risk is minimal. However, they prefer to keep an eye on or receive updates on the FTO study for the goods or features when the product development cycle is lengthy. These updates assist the R&D teams in keeping up with the most recent advancements in the market, shifting consumer preferences, and better managing their operational flexibility. 
2. The R&D team and IP Counsel work closely together and communicate: The R&D team and the IP team in some businesses work extremely closely together. We reasoned that close cooperation is more a function of an organization’s culture than of the kind of product it creates or the industry it serves. 

Counsels prefer to get updates on the FTO studies in a setting where teams frequently debate the possibility of new features, the application of features in other application areas, the extension of their products by merging some features, etc. They use FTO landscape analysis, which provides the optimum solution for their problem. 

To ensure that the product being created does not violate the current scope of other people’s patents, IP counsels received a one-time FTO in contexts where R&D teams occasionally collaborate, whether after concluding their own research or at the start of their research. In such cases, this is simply done since a procedure has been established in the business and must be followed. The FTO’s goal in this situation is risk management, therefore its secondary value of acquiring intelligence is disregarded. 

In a few instances, some attorneys disclosed that they chose recurring FTO because they have received internal information indicating that there is a good chance that their rivals may be working on the same issue and may have applied for patent protection; however, the application may not yet have been published. Since competitors may later utilize these patents to cause difficulties, IP counsel frequently obtains FTO studies to help manage future risks. 

Some attorneys have mentioned that they have observed their R&D team using recurrent FTO reports to obtain superior alternatives to those covered by patents. Maybe two birds and one arrow?