Patents Aren’t Everything

Startups Need Freedom to Operate, Too

Brian Apel
While patents focus on the client’s invention, FTOs examine other parties’ patents on which the client’s new product might infringe.

While patents focus on the client’s invention, FTOs examine other parties’ patents on which the client’s new product might infringe.

Morsa Images via iStock

When startups reach out to intellectual-property attorneys, it is invariably about one thing: getting a patent. When asked if the startup has done an “FTO”—shorthand for a Freedom to Operate analysis—the response is, invariably, “What’s that?” As startups quickly learn, an FTO is an analysis performed by a private IP attorney to assess a client’s risk of suit and liability for patent infringement in connection with the client’s development, launch, or sale of a new product.

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