The Importance of the Free Implementation (FTO) Survey for Business

In recent years, there have been numerous economic disputes arising from patent infringement, which involve huge economic benefits and the commercial value of patents has become increasingly prominent. Faced with such a huge number of patent litigation cases, enterprises should be how to prevent their products encounter patent infringement litigation,FTOHighLighting its important role, free implination (Freedom to Operate referred to as FTO) refers to the free use and development of technology by an enterprise without infringing the patent rights of others, and putting the products or services produced by the technology into the market.

1 When to start FTO

Businesses can be in the product/TechnologyAt the beginning of the projector in the process of developmentStartFTOInvestigate and understand the development prospects of the product;

In the product/Late stage of technology development or near industrializationWhenFTOInvestigate, identify products/Market benefits of the technology;

Overseas production and sales of productscarried out beforeFTOInvestigations to determine whether the product has free access to the target regional market,Avoid the risk of patent infringement;

In the process of financing or merger and acquisition, throughFTOInvestigate and understand the patent value of enterprises and evaluate intangible assets.

InProduct or TechnologyproceedLicense or TransferWhen, throughFTOEvaluate the benefits of patents to gain a favorable market position.

2,FTOInvestigation process

The FTO investigation report refers to the due diligence and legal opinion on whether the technology implemented by the enterprise infringes the patent rights of others, and makes an analysis report on whether it infringes the patent rights of others.The enterprise entrusts a qualified third party to carry outFTOWhen investigating, it is generally necessary to go through the following stages:

The first stage: clear objectivesProducts/Technical characteristics of the technology. First clearFTOThe specific needs of the product are fully understood./technology on the basis of all technical characteristics, the correct division of technical characteristics.

The second stage: the development of patent search strategy. Determine the patent search strategy and select the appropriate search library for the search work.

The third stage: comprehensive screening of relevant patents. In the search results, the patents that are closest to the technical characteristics determined in the first stage are selected, the scope of protection of the claims and the technical characteristics of the target product are clarified, and the closeness of the patent to the technical scheme of the target product is determined.

The fourth stage: claim comparison, do infringement judgment. Facing different target areasFTOThe investigation should apply the principle of infringement comparison in the region, compare the technical characteristics of the target product with the technical characteristics recorded in the claims in the relevant patents, and determine whether the target product falls within the scope of patent protection.

Stage 5: IssuanceFTOInvestigation report. Generally speaking, the conclusion of infringement risk analysis can be divided into non-infringement, possible infringement and infringement, and enterprises should take corresponding early warning measures for different infringement risk analysis conclusions.

3、FTOThe role of the report:

For enterprises, entrust a professionally qualified institution to issue a "Patent Free Implementation Search and Infringement Analysis Report" (FTO report), in the conduct of business activities such as the production, sale or promise of sale of a product.BeforeConduct a comprehensive patent search and infringement analysis. Using the search, analysis and infringement comparison work presented in the report,The enterprise can improve the technical scheme to be implemented as soon as possible, so as not to fall into the scope of protection of the prior patent right. Enterprises can referFTOFor the closest relevant patent in the report, on the premise that the term of the patent right will expire, the enterprise can choose to wait for the expiration of the protection period of the previous patent right before entering the target market. In addition, you can also consider choosing the right time to find existing technologies or conflicting applications to initiate patent invalidation procedures against prior patent rights, so as to clear the obstacles to the technical solutions to be implemented. Businesses can also be based onFTOThe report considers negotiations with prior patentees regarding patent transfers, patent licensing, cross-licensing and/or the establishment of patent alliances, etc. to negotiate a favorable market position.in addition,FTOThe report can alsoAs an important defense against non-malicious infringement, even if the product is found to be infringing,also canHelp businesses exemptPartPunitive damages.

prevention is greater than cure, and comprehensiveFTO due diligence can help enterprises to find the risks of product technology before it goes to the market as soon as possible, and enable enterprises to take the initiative to improve or modify the technology early to effectively avoid the legal risks of intellectual property disputes, reduce or even avoid potential losses.