Patent Attorney doing freedom to operate search

How to avoid legal pitfalls with a ‘Freedom to Operate’ search

When it comes to releasing your idea or innovation into the wild, learning the ins and outs of freedom to operate (FTO) searches can be extremely helpful.

Think of it as your pre-launch background check – a little detective work that keeps you out of legal hot water and helps you avoid accidentally ruffling any feathers.

Let’s explore.

What is a Freedom to Operate search?

A Freedom to Operate search, also known as an infringement search or a clearance search, helps businesses avoid legal trouble by identifying if you might be infringing on someone else’s intellectual property rights when launching a new brand, product or service.

It’s like doing a background check to make sure there are no patents, trademarks, copyrights or other IP that could cause problems.

It’s vital to complete this as early as possible in the process.

Why complete a Freedom to Operate search?

Conducting an FTO search early on can save you from costly disputes and help you make smarter decisions about your products and market strategies.

By uncovering existing IP rights, you can evaluate the likelihood of infringing upon third-party patents, trademarks, or copyrights, and minimise the risk of litigation and financial penalties.

By understanding the intellectual property landscape, you can adjust your plans, change designs, or look into getting licences to avoid conflicts and stay competitive.

FTO searches also protect the money businesses put into building their brands and creating new products. By checking for infringement issues early on, you can avoid big delays and problems later.

They’re also important for planning to enter new markets. By figuring out potential obstacles beforehand, you can make plans to get around them, get the right permissions, and position your business well in the market. This helps you succeed and grow. Plus, FTO searches can show you where you can operate without bumping into others’ rights or where those rights are weaker.

Understanding the intellectual property landscape helps you learn about your competitors, trends in technology, and how others innovate. This knowledge can help you find gaps in the market, stand out with your products, and strengthen your own intellectual property by filing patents or acquiring them. Doing these searches early on can even help you find new ideas you can use and protect for yourself.

How to conduct a Freedom to Operate search

First, you figure out what the business wants to do and if it involves trademarks, branding, technology for a new product, or a mix of these. Then, you consider which countries you plan to work in because that decides how much and where you need to search.

For trademarks and brands, the search looks for any similar names or products already out there. It checks if the new name might be confused with an existing one and if the new goods or services are like ones already on the market.

This search covers a wide range because businesses can get rights to a name just by using it over time in an area. It also checks trademark registrations in different countries. Different sources like intellectual property databases, business directories, and websites are used to find out if someone else has used a similar name before.

For new products and services, the search can be more targeted to intellectual property office databases listing registered design and patent rights. These databases provide public records of the rights currently held by others, with patent attorneys commonly being used to interpret whether any rights found are likely to cause problems. Plus, it’s important to check that the business hasn’t used any copyrighted materials from others in their new product or service.

Need help with your Freedom to Operate search?

Get in touch


Simon Murphy

Patent & Trade Mark Attorney

Simon Murphy is a Hamilton-based patent attorney with Origin IP. He has 25+ years’ experience working in IP in New Zealand and Australia. He specialises in software, electronics and ICT-related inventions and has experience in the fields of pattern-recognition software, Hall-effect transducers, search-engine optimisation systems, biometric-recognition processes, electric-fencing technology and RFID systems.

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