subject: Freedom to operate [print this page] Freedom to operate Freedom to operate
FREEDOM TO OPERATE
"Freedom to operate", abbreviated "FTO", is usually used to express the steps significant whether a particular action, such as testing or commercializing a product, can be done without infringing valid intellectual property rights of others.
A freedom to operate search examines the claims language of third-party in-force patents and is typically conducted as due attentiveness to assess the risk of potential infringement.
Since IP rights are unambiguous to different jurisdictions, a "freedom to operate" analysis should relate to fastidious countries or regions where you want to operate. However, you might not have the same freedom to operate if you want to sell to other countries the seed to another country, where patents or other IP rights may have been issued covering the plant genotype, methods, etc.
Determining whether there is freedom to operate in any particular jurisdiction is a major reason why patent databases are so important, and why the Patent Tools are so useful.
Certain Criteria
Patents may not have been functional for in many countries; the claimed matter is protected only where there is a patent.
Patents may not have been approved in some of the countries where applications were made; laws about what is patentable differ between countries.
Patents that were issued may not still be in force if the patentee has not made regular expenditure due.
Patents are partial monopoly and they do expire.
Some countries have exemptions for certain proceedings (for example, Germany is enacting a research exemption, and New Zealand has an exemption for certain types of clinical trials).
Patents that were issued in different countries may have broader or narrower claims---so it is really significant to look at the claims to see what they read on.
If you ask a legal representative to render an FTO opinion, that might consist of finding such IP rights, issue jurisdictions, expiry dates and so on, and also assessing how the issued claims are to be construed and whether or not the issued claims might be invalid.
Usually, claims in a particular patent could be invalid since there is prior art or knowledge in public domain, perhaps a publication or a public presentation about the matter claimed in the patent, that the patent assessment process didn't find. In some countries a patent could be susceptible to challenge because an inventor wasn't appropriately named.
Claims may be construed to cover some actions and not others, for example, because of definitions in the body of the patent condition, or admissions made by the patentee while the patent application was being examined.
If there are applicable intellectual property rights of others that would be infringed by the action you want to take, you may be able to get freedom to operate with respect to any one of those rights by negotiating for a license with the proprietor of the IP rights.
