An FTO analysis is a study carried out to check that you don’t risk infringing an intellectual property title that belongs to a third party, such as a brand, a design, a plant variety, a printed circuit or a patent.
This document details the case of the patent FTO.
Anyone who ultimately wishes to market
a product or a process.
At universities and higher education institutions, FTO primarily concerns collaborative or applied research projects and spin-offs.
A patentability analysis involves analysing the prior art to check that an invention is new and inventive. It can be used to draw up a patent that covers the product or process concerned, while limiting the possibilities for competitors to market a product or process that is too similar.
The FTO analysis itself consists of checking that a product or process that is to be marketed does not fall partially or wholly within the field of protection (which may be definitive or provisional) of patents held by third parties.
- To make sure that you are free to operate a product or process.
- To check that the product or process you wish to develop/ market is not protected by a third-party patent and is therefore not a counterfeit.
- To avoid investing in research for which no product can be marketed.
- To reassure investors.
- To avoid lawsuits.
Ideally, the FTO analysis should be carried out when the research begins. There is always time to think about this during the research, but once marketing has begun, it is too late.
The FTO analysis should be regularly updated during the development of the product or process until the final product or process is marketed.
My freedom to operate stops where that of others starts!
Stage 1: Prior art searching
Stage 2: results analysis
FTO
Counterfeit
The product or process (A+B+C+D) contains all the characteristics of third-party patents (A+B+C).
.
Patentability
Patentable
The invention (product or process) is new because the third party patent does not disclose all the elements claimed and inventive if the addition of characteristic D is not obvious.
FTO
No counterfeit
The product or process (A+B+C) does not include all the characteristics of the third party patent (A+B+C+D).
.
Patentability
Not patentable
The invention (product or process) is not new because the third-party patent discloses all the elements claimed.
FTO
No counterfeit
The product or process (A+B+C+D’) does not include all the characteristics of the third party patent (A+B+C+D), insofar as characteristics D and D’ are not equivalent.
Patentability
Not patentable
The invention (product or process) is new because the third party patent does not disclose all the elements claimed, but not
inventive because the addition of feature D’ in place of feature D is obvious.
Conducting an exhaustive FTO analysis is a complex and costly procedure that requires the intervention of an outside expert:
• to conduct the prior rights search in order to find all the relevant documents that could impede operation;
• to check the status of patent applications and patents (abandoned, pending, in force, stage of the issue procedure);
• to conduct a country-by-country analysis, because the scope of the protection may differ from one country to another.
Links (upcoming)
– Patent procedure memo
– Prior art searching memo
– Patent as a source of information memo
Contact
Réseau LiEU
contact@reseaulieu.be
+32(0)81/62.25.94
