Freedom to Operate? An Additional Aspect to Consider When Planning to Launch a Product to Market

When a company prepares to launch a new product, attention is usually focused on production, distribution, marketing strategies, and regulatory approvals. However, it is far less common to assess whether the product may infringe industrial property rights held by third parties, an oversight that can lead to serious legal disputes and, in some cases, the withdrawal of the product from the market.

What Is a Freedom to Operate (FTO) Analysis?

In the patent field, a Freedom to Operate (FTO) analysis consists of a detailed comparison between a product’s technical features and existing granted or pending industrial property rights within a specific territory. Its purpose is to determine whether the manufacture, use, or commercialization of a product—or the execution of a process—could infringe active patent rights.

Why Is aWhy Is an FTO Analysis Different from a Patentability Search?

While a patentability search evaluates whether a new development can be protected, an FTO analysis focuses on identifying legal barriers that may prevent market entry.

In other words:

• Patentability asks: Can I protect this invention?

• FTO asks: Can I legally commercialize it?

Strategic Value of an FTO Analysis

Conducting an FTO analysis provides companies with a clear understanding of the patent landscape, enabling informed decisions at critical stages of product development.

Failing to perform an FTO analysis exposes businesses to:

• Patent infringement litigation

• Market restrictions

• Loss of investment

• Reputational damage

When carried out early, an FTO analysis allows companies to anticipate risks, explore licensing opportunities, redesign products if necessary, and even identify new innovation paths.

When Should an FTO Analysis Be Conducted?

An FTO analysis should not be treated as a last-minute exercise. Ideally, it should be conducted:

• During the early stages of product development

• Prior to market launch

• Whenever significant changes are made to the product or process

At its core, an FTO analysis is a legal assessment of whether a clear path to market exists.

Conclusion

In today’s competitive and innovation-driven markets, conducting a Freedom to Operate analysis is a strategic investment. It protects innovation, reduces legal uncertainty, and strengthens business decision-making when launching new products.

WRITTEN BY: MELISSA VILLARREAL

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