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IP · SearchTask: Check a product

Freedom to operate (FTO)

Also called freedom to practice, clearance search, right to use search, infringement search, FTO search, FTO analysis

Published by Patsnap Team Updated 16 sources
DefinitionFTO

Freedom to operate (FTO) is the ability to make, use, sell or import a product without infringing other parties' patents. An FTO search, also called a clearance or right to use search, looks for unexpired patents that launching the product could infringe1.

An FTO analysis starts with a search of patent literature for issued or pending patents and adds a legal opinion on whether the product may infringe them2.

Comes upDuring technical and product development, and before marketing a product1
AppliesCountry by country, because patent protection is territorial2
Governed byNational patent law, for example 35 U.S.C. 271 in the US3
Not to confuse withPatentability search1
01

When it matters

WIPO describes many companies seeking to secure their freedom to operate at an early stage, before a new product is launched2. Its patent information module says that searching periodically during technical development, product development or before marketing enables a company to identify related patents and their legal status in time1.

WIPO's module states that an FTO search should be undertaken before marketing a product to minimize the risk of a patent infringement suit1.

02

What it covers, and where it stops

In scopeOut of scope
Unexpired (in-force) patents1Patents that expired before your first act in that country: infringement requires acts during the patent's term3
The claims of relevant patents and of relevant published applications1Whether your own invention is new: that is a patentability search1
The countries where the product will be made, used, sold or imported2,3Countries where the patent is not in force, because protection is territorial2
03

How an FTO analysis works

  1. Search issued patents and pending applicationsThe analysis begins with a search of patent literature for issued or pending patents2.
  2. Check legal statusRelated patents are identified together with their legal status, so that unexpired rights are known in time1.
  3. Study the claimsThe claims of each relevant patent, and of relevant published applications, are studied to determine the scope of protection1.
  4. Obtain a legal opinionA legal opinion addresses whether the product, process or service may be considered to infringe the patents found2.
  5. Decide how to handle each riskOptions WIPO lists include purchasing or licensing the patent, cross-licensing, inventing around it and patent pools2. A validity search can test whether a blocking patent was properly granted1.
04

Where you sell changes the answer

Patent protection is territorial: a technology protected in a company's main markets may be in the public domain in other countries, where no license is needed to commercialize it2.

United States

  • Whoever without authority makes, uses, offers to sell or sells a patented invention in the US, or imports it, during the term of the patent infringes the patent (35 U.S.C. 271(a))3.
  • A published application can give the patent owner a right to a reasonable royalty for the period before grant, if the issued claims are substantially identical to the published claims and the infringer had actual notice (35 U.S.C. 154(d))4.
  • A court may increase damages up to three times the amount found or assessed (35 U.S.C. 284)5.
  • A third party can ask the USPTO to review the patentability of issued claims through inter partes review, on grounds under 35 U.S.C. 102 or 103 based on patents and printed publications6. Institution is not automatic: the Director may authorize review only if there is a reasonable likelihood that the petitioner would prevail on at least 1 challenged claim (35 U.S.C. 314(a))16. The USPTO proposed changes to the rules for instituting inter partes review in a notice of proposed rulemaking published on 17 October 2025, and no final rule had been published in the Federal Register as of 27 October 202615.

Europe

  • In each contracting state for which it is granted, a European patent has the effect of a national patent granted by that state (Article 2(2) EPC)7.
  • Infringement of a European patent is dealt with by national law (Article 64(3) EPC)12.
  • The Unified Patent Court has exclusive jurisdiction for litigation relating to Unitary Patents and European patents13. See Unified Patent Court.
  • The Unitary Patent system was launched on 1 June 2023, and a Unitary Patent registered since 1 September 2024 covers the territory of 18 EU member states8.

China

  • The term of an invention patent is 20 years and of a utility model patent 10 years, counted from the filing date (Patent Law of the PRC, Article 42)9. A design patent lasts 15 years from the filing date if the application was filed on or after 1 June 2021, and 10 years if it was filed on or before 31 May 20219,14.
  • Utility model and design patents are granted where no cause for rejection is found after preliminary examination (Article 40)9.
05

FTO vs patentability vs validity search

WIPO's patent information module describes these as different types of search, each answering a different question at a different time1.

SearchQuestion it answersWhen it is done
Freedom to operateWould launching the product infringe unexpired patents?1During development and before marketing a product1
PatentabilityIs the invention new and non-obvious?1While preparing and before filing a patent application1
ValidityWas a granted patent properly granted?1After grant: for litigation, licensing or due diligence1
06

Seen in the record

An FTO search is meant to minimize the risk of a patent infringement suit1. The record below is an example of a US infringement action as it appears on a court docket; it says nothing about either party's clearance work.

US patent litigationPatsnap litigation record

Advanced Accelerator Applications USA v. Curium US

4:24-cv-01392E.D. Mo.Closed3 patents asserted

Infringement action filed 18 Oct 2024 and closed 1 Nov 2024. Recorded basis of termination: voluntary dismissal10.

See the asserted patents and the docket record.Open the record →
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07

Questions people ask

Is an FTO search the same as a patentability search?

No. A patentability search looks for prior art to judge whether an invention is new and non-obvious before an application is filed. An FTO search looks for unexpired patents that a product could infringe1.

Do expired patents matter?

An expired patent cannot be infringed by acts after it expires, because infringement requires acts during the term of the patent3. The owner can still sue for acts committed during the term: in the US, recovery is barred only for infringement committed more than six years before the complaint (35 U.S.C. 286)11. Terms can also be extended, for example in China to compensate for unreasonable grant delay or for the marketing approval of a new drug (Article 42)9. Many patents also lapse early when maintenance fees are not paid2, so legal status should be checked rather than calculated from the filing date.

Can a pending application affect a launch?

WIPO's guidance is to study the claims of relevant published applications as part of the search1. In the US, a published application can lead to a reasonable royalty for the period before grant if the issued claims are substantially identical and the infringer had actual notice4.

Does a clean FTO result guarantee there is no infringement?

No. WIPO notes that an absolute guarantee of freedom to operate will never be attainable, although there are ways of minimizing the risks2.

08

How it connects

Builds onPatent claimPatent family
Done withClaim chartPatent search
Leads toDesign aroundInter partes review
Often confused withPatentability searchInvalidity search
Next step

Go from the term to the task

Read how the method works, run it on your own product or idea, then try a free tool.

  • 01 / How-toHow to run a freedom-to-operate analysisScope, search, claim review and the report counsel will ask for.GuideRead
  • 02 / AI agentFTO Search AI AgentAn AI agent that finds in-force patents that could read on your product, with a claim chart for each one.Patsnap EurekaRun it
PublishedPatsnap Team
Updated 27 October 2026
Sources
  1. IP PANORAMA Module 06: Patent Information. World Intellectual Property Organization (WIPO). Accessed 21 October 2026.
  2. IP and Business: Launching a New Product: Freedom to Operate. WIPO Magazine (30 September 2005), World Intellectual Property Organization. Accessed 21 October 2026.
  3. 35 U.S. Code § 271: Infringement of patent. Legal Information Institute, Cornell Law School. Accessed 21 October 2026.
  4. 35 U.S. Code § 154: Contents and term of patent; provisional rights. Legal Information Institute, Cornell Law School. Accessed 21 October 2026.
  5. 35 U.S. Code § 284: Damages. Legal Information Institute, Cornell Law School. Accessed 21 October 2026.
  6. Inter Partes Review. United States Patent and Trademark Office (USPTO). Accessed 21 October 2026.
  7. National validation. European Patent Office (EPO). Accessed 21 October 2026.
  8. When was the Unitary Patent system launched?. European Patent Office (EPO). Accessed 21 October 2026.
  9. Patent Law of the People's Republic of China (as amended up to the Decision of October 17, 2020). WIPO Lex, World Intellectual Property Organization. Accessed 21 October 2026.
  10. Advanced Accelerator Applications USA et al. v. Curium US et al., case 4:24-cv-01392. Patsnap litigation records. Accessed 21 October 2026.
  11. 35 U.S. Code § 286: Time limitation on damages. Legal Information Institute, Cornell Law School. Accessed 21 October 2026.
  12. Article 64: Rights conferred by a European patent. European Patent Office (EPO), European Patent Convention. Accessed 27 October 2026.
  13. Unified Patent Court. European Patent Office (EPO). Accessed 27 October 2026.
  14. 国家知识产权局关于施行修改后专利法的相关审查业务处理暂行办法的公告（第510号）. China National Intellectual Property Administration (CNIPA). Accessed 27 October 2026.
  15. Revision to Rules of Practice Before the Patent Trial and Appeal Board (proposed rule, 90 FR 48335). Federal Register, Patent and Trademark Office. Accessed 27 October 2026.
  16. 35 U.S. Code § 314: Institution of inter partes review. Legal Information Institute, Cornell Law School. Accessed 27 October 2026.
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Rules vary and change. The law, standards and practice described here differ between jurisdictions and change through legislation, court decisions and revisions to official guidance and standards. This page was last checked against its sources on 27 October 2026 and may not reflect later changes. Check the current rules and official guidance in each jurisdiction that applies to you.

No FTO or validity opinion. Nothing on this page constitutes a freedom-to-operate, novelty, validity or infringement opinion. Any decision touching a live patent dispute should be verified independently and reviewed with qualified patent counsel.

Cases and records as examples. Court decisions, dockets, agency decisions and official reports are cited to show how a term is used, and are summarized rather than reproduced in full. Nothing here should be read as an assertion that any party infringed, that any patent is valid or invalid, that any settlement occurred, or that any party prevailed, beyond what the cited record or decision itself states. Docket data is drawn from a snapshot and may lag the live docket. The filing of a claim is not a court finding, and a docket marked “closed” does not by itself establish infringement, validity, settlement or a decision on the merits.

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