Patent blog: Convince investors with your Freedom to Operate (FTO) Analysis
As an innovative entrepreneur, it is essential to consider whether you want to protect your idea or invention and check whether you may be infringing on other parties' ideas or inventions. A Freedom to Operate (FTO) Analysis will tell you whether this is the case. In this blog, Yp Kroon, patent advisor at the Netherlands Patent Office (OCNL), talks about FTO, the importance of intellectual property, and what to look out for as an entrepreneur.
What is Freedom to Operate?
Freedom to Operate is an analysis of whether your product, technology, or invention may infringe on someone else's intellectual property (IP) rights. Trademark - and patent rights are examples of IP rights. A well-executed FTO reduces the risk that you unknowingly infringe others' IP rights. An FTO Analysis provides information on whether there is a risk of potential legal issues or patent infringements. It is a risk analysis that can also attract investors, who naturally prefer to minimise their exposure to risk. By performing a thorough FTO Analysis, you can demonstrate that you take your company and its (risk) capital seriously.
If investors see that you take your intellectual property, as well as those of others seriously, they are more likely to invest in you.
Consider your intellectual property rights
It is important to contemplate at an early stage whether you have intellectual property yourself and to consider whether, in your particular situation, it is worth registering it. You can do this in several ways and also bring advantages if you seek financing for your innovation or business. Investors are interested in whether you might be infringing someone else's IP rights and, for example, in how you manage your intellectual property. If investors see that you take your intellectual property, as well as those of others, seriously, they are more likely to invest in you.
Read more about the different forms of protection
Freedom to Operate and patents
Freedom to Operate encompasses a wide range of aspects. Important among them is whether other parties' patent rights are infringed on. How do you determine whether you have Freedom to Operate (FTO) for your innovation? You can do this in 3 steps:
Step 1: Search in the patent database
A patent database contains all published patent applications from around the world. Searching a patent database using classification codes rather than keywords is best. These codes represent arts or technologies. You can use these classifications to find the most relevant patent publications. The Netherlands Patent Office can help you find which classification codes are most relevant for your innovation and offer a search term to give you some initial results.
Our help will give you a starting point to perform your patent search. You can filter the results by country, only including patents important to you. You can also check the status of patents in the register to see which patents have been granted. Alternatively, you can contact a commercial party to search on your behalf. If you decide to outsource your patent search, it is important to draft a clear briefing highlighting the key parts that need to be included. Your local patent advisor from the Netherlands Patent Office can offer their thoughts, prompting you to think carefully about what aspects your search could include, ensuring that you know what results to expect and enabling you to check this afterward. The search is costly, so you want it to be performed as efficiently and effectively as possible.
Read more about how the Netherlands Patent Office can help you perform an exploratory search
Step 2: Interpreting the patent search
Your patent search yields a selection of patent publications, but this is not the end of the process. You now need to review that selection more closely by examining the claims in a patent. The claims specify, often in complicated legal terms, what the patent applicant claims as new or inventive in their art or technology. The Netherlands Patent Office can help you interpret the search results correctly by explaining how the different claims are structured and how they relate to each other.
Step 3: Legal opinion of a patent attorney
Patent attorneys are lawyers with a technical background trained to describe inventions and can analyse patent applications accurately. Among other things, they will help you assess whether the patent publications found are valid in your countries of interest. You also discuss the claims in the patent publication with the patent attorney and compare them with the art or technology used by your company. The patent attorney assesses whether the patents found are infringed upon or not. The patent attorney's legal opinion is often set out for you in a report.
Key considerations for you as an entrepreneur
When dealing with patents for FTO, it is important to pay close attention to the following aspects:
- Do as much of the preliminary search as possible yourself. This gives you valuable insight as a company about how the market is structured and whether you may have scope for reworking your innovation;
- Ensure you draft a clear briefing if you decide to engage a commercial party and patent attorney, as the associated costs can be pretty high.
- Ask for detailed reasoning in your FTO report so that it is clear how the search was performed and what the differences are between the arts or technologies you used and the claims in the previously made selection of patents;
- An opinion in an FTO Analysis does not offer an absolute assurance. It can never cover all aspects, and patent applications, for example, are only published after 18 months.
Ask the Netherlands Patent Office for assistance
Suppose you are considering having an FTO analysis performed: As patent advisors of the Netherlands Patent Office, a Netherlands Enterprise Agency (RVO) department, we provide you with free information and can assist you every step of the way. Or join one of our online webinars.
- Ministry of Economic Affairs
