Can You Actually Launch That Product?

What is FTO and why should founders care?

Freedom to Operate (FTO) is a structured assessment of whether a specific product, technology, process or application can be commercialised without infringing active third-party IP rights, especially patents, in selected territories. 

In practical terms, it helps answer questions such as: 

• Can we launch this technology in Europe, the US or another target market? 

• Are there active patents that could block our product, process or use case? 

• Do we need to modify the design, limit the territory, seek a licence or rethink the commercialisation path? 

For deep tech startups and scientific teams, this is not just a legal formality. It is a strategic step in moving from invention to market. 

It can influence R&D priorities, market-entry strategy, licensing discussions, grant applications, investor due diligence and the credibility of a commercialisation plan. 

FTO is not the same as novelty search or patentability assessment 

These terms are often used together and misunderstood as they answer different questions. 

• A novelty search asks: Is this invention new? 

• A patentability assessment asks: Can we obtain patent protection for this invention? 

• An FTO analysis asks: Can we commercialise this product, process or technology without infringing someone else’s active rights? 

That distinction matters. A technology can be patentable and still not be free to operate. 

A research team may develop an improvement that is novel, inventive and worth protecting, but the commercial product may still depend on a broader patent owned by another party. 

Conversely, finding relevant third-party patents during FTO is not necessarily bad news. It gives the team time to act before resources are locked in, before investor discussions become more advanced, or before a product enters the market. 

What FTO can reveal in practice 

At UNICO, we typically see FTO becoming valuable in several situations. 

1. For a startup preparing to enter a market, FTO can identify whether competitors hold active patents that overlap with the intended product or process. This may support a Go or a No-Go decision, guide a design-around strategy, or clarify which markets are less risky to prioritise. 

2. For an academic team at an earlier TRL stage, FTO can help compare several possible application pathways. If one application area is heavily saturated with broad active patents and another is more open, this can be a strong input for commercialisation strategy or even for a pivot. 

3. For teams applying for major grants or negotiating with investors, FTO demonstrates that IP risk is not being ignored. It shows that the team understands not only what it has invented, but also the landscape it wants to enter. 

4. For companies monitoring known competitors, FTO can also become a focused competitive intelligence exercise. In a well-defined technology segment, it is possible to examine what specific competitors are patenting and where potential collision points may appear. 

How we approach FTO at UNICO 

A useful FTO analysis starts with understanding the technology. 

• This sounds obvious, but it is critical. Patent documents are technical documents with legal consequences. To assess risk properly, the analyst must understand the product, process, technical principle, application context and intended markets. 

• That is why we usually start with technical documentation, presentations, schemes, scientific papers, product descriptions, competitor lists and discussions with the team. 

The next step is translating the technology into a patent search strategy. 

• This means defining the right keywords, synonyms, technical variants, IPC/CPC classes, assignees and search fields. A single technical concept can often be described in several different ways.  

• In practice, this step is highly iterative. We start by breaking the technology down into its core technical features and then translate each feature into several possible patent-search terms. Patent documents rarely use only one obvious wording, so synonyms or broader technical terms need to be considered. 

• The search string is then built using Boolean logic, typically combining alternative terms with OR and linking essential technical features with AND. A simplified example could look like: (membrane OR filter OR separation layer) AND (nanocoating OR functional layer OR surface modification) AND (water purification OR wastewater treatment) 

• The first version of the query is rarely the final one. If the search returns hundreds or thousands of results, the query is usually too broad, or the field is extremely saturated. If it returns almost nothing, the wording may be too narrow, or the key concept may be described differently in patent language. 

• As a practical rule of thumb, we usually aim to reach a search set that is small enough to review in detail, but broad enough not to miss relevant risks. For a focused FTO scan, this often means reducing the results to the lower tens of potentially relevant patent families. From there, we select the most risk-relevant documents for deeper claim-level analysis. 

• In our work, we use professional patent databases such as PatSnap, while also recognising the value of public tools such as Espacenet or WIPO Patentscope. The tool matters, but the interpretation matters more. 

For FTO, the focus is not on all patents ever published. The focus is on active rights, relevant patent families, selected jurisdictions and claims that may cover the planned commercial activity. 

This is why claim analysis is the core of the work. Independent claims define the broadest scope of protection. Dependent claims may add narrower but still relevant limitations. The question is not simply whether a patent looks similar at first sight. The question is whether the product or process meets the protected technical features in a relevant jurisdiction. 

What if potentially blocking patents appear? 

The outcome is not automatically negative. The analysis can point to several options: 

• modify the product or process, 

• design around specific claim elements, 

• change the target territory, 

• seek a licence or partnership, 

• challenge the relevance or validity of the patent, 

• or prioritise another application area. 

In that sense, FTO is not only a risk report. Done at the right time, it becomes a strategic decision-making tool. 

FTO is not a one-off checkbox 

No FTO analysis gives absolute immunity. 

Patent applications may be unpublished at the time of the search. Patent status changes. New patents are granted. Product specifications evolve. Target markets shift. 

That is why FTO should be treated as a living input into commercialisation strategy, not as a static document that is prepared once and forgotten. 

For early-stage projects, a lighter FTO scan may be sufficient to detect major red flags. For a product close to launch, investment, licensing or international expansion, the analysis should be deeper, more territory-specific and usually reviewed with legal counsel. 

Who should do it? 

Internal teams understand their technology best. External specialists understand patent databases, IP landscapes and how to translate technical features into risk-relevant searches. 

In our experience, the strongest model is a hybrid one: close collaboration between the technology team and an external partner who can structure the search, interpret the landscape and turn findings into practical next steps. 

For science-based innovations, this collaboration is especially important. The goal is not to produce a generic patent list. The goal is to understand where the technology can move safely, where the risks are, and what strategic options remain open. 

Because in commercialisation, the key question is not only Can we protect our invention? It is also Can we actually use it in the market?