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

When a company is preparing to launch a new product, attention is usually given to aspects such as production, distribution, marketing, and regulatory approvals. However, it is far less common to ask whether the product might be subject to the industrial property rights of a third party, an oversight that could result in serious legal problems and, ultimately, the need to withdraw the product from the market. 

In the patent field, a Freedom to Operate (FTO) analysis refers to a detailed comparison of a product’s features against granted (or pending) industrial property rights in a specific territory. Its purpose is to determine whether the product (or process) could infringe active patent rights in that jurisdiction. 

An FTO analysis provides companies with a clear understanding of the legal landscape, enabling strategic decision-making at critical stages of development. 

Unlike a patentability search, which evaluates the potential for protecting a new development, an FTO focuses on identifying possible legal barriers that could prevent the manufacture, use, or sale of a product in a given market or the execution of a process. 

Failing to conduct such an analysis exposes a company to the risk of infringement lawsuits, market restrictions, loss of investment, and reputational damage. Performing it early allows businesses to anticipate risks, consider licensing options, and, in some cases, uncover opportunities for innovation. 

At its core, an FTO analysis is a legal assessment that determines whether a clear path to market exists. For this reason, it is advisable to carry it out not only before the launch but also during the earliest stages of product development. 

In today’s increasingly competitive environment, conducting an FTO analysis is a strategic investment, one that protects innovation and strengthens business decision-making. 

WRITTEN BY: MELISSA VILLARREAL