Being on the receiving end of a court action for patent infringement will cost a six or seven figure sum to defend. That's a risk most companies want to avoid. So my role often involves helping my clients to identify and mitigate that risk.
But, as I’ve said before, risk-free just doesn’t exist. I can’t eliminate every risk. I can’t hope even to identify every risk. Even with an unlimited budget, it’s simply impossible.
It’s for this reason I would suggest that the term “freedom to operate” can be unhelpful. It supports the inference that complete freedom from an accusation of patent infringement is feasible. It implies that the goal is a professional opinion saying there’s no risk at all.
I won’t even begin to pretend that’s possible.
What I can do, however, is to produce a risk assessment that is pragmatic, proportionate and commercially savvy.
Identifying a manageable number of what are probably the greatest risks and mitigating them is, in most circumstances, much more useful and better value for money than spending millions trying to find every invisible needle in a haystack the size of the universe.
Freedom to Operate (FTO) Generally, the ability to use or commercialize a product or process without infringing another party's valid intellectual property (IP) rights, usually patents.