Legal Services

Freedom to Operate

One reason to work with FLYNN IP LAW is to seek patent protection for the improvements that make a proposed new product or service better than the current state of the art.

A second reason to work with FLYNN IP LAW is to reduce the risk that the proposed product or service is going to infringe issued patent claims belonging to a third-party. The work in this second area can be called clearance work or freedom-to-operate (FTO) work.

FTO work starts with a set of patent searches. FLYNN IP LAW and the client work to identify the components or combinations that merit the effort of a freedom-to-operate search. When making a product with a number of subcomponents, such as a laptop computer, one does not normally spend money to search for relevant patents on off-the-shelf components such as a standard power supply or a machine screw. While it is possible that these off-the-shelf items infringe a patent claim, generally the manufacturer will have checked for freedom to operate or will make corrections as needed when informed that there is a problem. Worse comes to worse, it is frequently possible to substitute another off-the-shelf item including one from the patent owner of the relevant patent.

On the other hand, if your company is producing a bone screw used in surgical procedures, doing a detailed FTO search on bone screw patents is appropriate. Likewise, if your company is seeking to produce power supplies, it would be appropriate to confirm that there are not patent claims that would impinge on your freedom to make such power supplies.

FTO activities can be expensive, but they pale in comparison with the expense of dealing with a patent infringement lawsuit or the need to redesign a product after the product has been released and a cease and desist demand is received.

FTO activities can include review of pending third-party applications to reduce the risk that patent applications already in the pipeline will emerge with patent claims that are a problem.

There are a number of blind spots in the process so a freedom-to-operate search does not reduce the risk of problems all the way to zero, but FTO work is a commercially reasonable step to reduce the risk of patent infringement problems.