Freedom to operate: the basics

Core idea#

Owning a patent doesn't give you the right to sell your product. It gives you the right to stop others. Your product can still infringe someone else's patent, for example a broad patent on a component, a manufacturing step or a use. Freedom to operate (FTO) is the question: can we make, use and sell this product, in these countries, without infringing patents that others hold?

Researchers often confuse two different searches:

You can have a strong patent and no freedom to operate, or no patent and complete freedom to operate.

For a pre-seed company, FTO isn't about a perfect legal opinion. It's about knowing early whether there's a patent that could block you, while you can still design around it, license it, or choose a different path.

Who it's for: founders building physical products, processes, devices, drugs or materials, especially in crowded fields.

How FTO works#

Five things that decide whether a patent matters

1. The claims, not the abstract or title. Infringement is judged against the claims; your product infringes only if it has every element of at least one claim (or an equivalent).
2. Territory. Patents are national. A US patent doesn't stop you making and selling in India, and vice versa. Check where you'll manufacture as well as where you'll sell .
3. Status. Is it granted and in force (fees paid)? Lapsed patents are free to use. Pending applications matter because they may be granted, sometimes with claims reshaped to cover you.
4. Expiry. Patents usually last 20 years from filing. One expiring before your launch may not matter.
5. Who owns it and how they behave. A university that licenses freely is a different risk from a competitor that litigates.

A good FTO also covers#

All the parts of the product (components, materials, software), manufacturing processes and methods of use; continuations and related family members of key patents (NK Patent Law); and the date, because FTO is a snapshot that needs updating as your design and the patent landscape change.

Tools#

• Free databases: Google Patents, Espacenet (European Patent Office), the USPTO's Patent Public Search, WIPO PATENTSCOPE, and India's patent search on the IP India portal.
• Commercial tools (often accessible through university libraries or incubators) offer better classification, alerts and legal status data.
• Patent attorneys and search firms do professional searches.

Typical costs (US, rough guide)#

• An outside professional search: around $2,500 to $5,000 (Klarquist).
• A focused FTO assessment of one product in one jurisdiction from competent outside counsel: typically $15,000 to $75,000, more at large firms (NK Patent Law).

Costs in India and the UK are usually lower for searches, but a formal opinion still needs an experienced attorney.

A staged approach for pre-seed companies#

You don't need a $50,000 opinion before you have a product. Match the depth of the work to the stage and the money at risk.

How to do the early screen yourself#

1. Break the product into elements: core technology, key components, materials, manufacturing steps, software, method of use.
2. Search each element by keywords, classification codes and known competitors' names.
3. Filter to granted, in-force patents and pending applications in your markets.
4. Read the independent claims of the closest hits. Ask: does our product have every element of this claim?
5. Record each patent: number, owner, expiry, status, why it might or might not matter.
6. Take the shortlist to an attorney. Don't conclude on your own that you're safe or unsafe.

Worked example (illustrative)#

A team building a solid-state battery separator does an early screen and finds:

• 4 granted US patents and 2 pending applications held by a large battery maker that claim ceramic separators with a particular particle size range;
• 1 European patent held by a university on the coating process;
• 12 others that, on reading the claims, clearly don't cover their product.

An attorney review shows their particle size falls outside two of the claims and that the university patent expires in four years. The remaining two patents are a real risk in the US. Options: adjust the particle size range (feasible, with some performance cost), or approach the owner about a licence later. The team adjusts the design, documents the reasoning, and tells investors, which strengthens the seed round rather than weakening it.

When you find a blocking patent#

Country notes#

General information, not legal advice.

• United States. Damages can be up to three times higher for egregious, wilful infringement (Sterne Kessler). There's no duty to get an opinion, and failing to get one can't be used to prove wilfulness (35 U.S.C. § 298) (Faegre Drinker), but a competent opinion relied on in good faith is strong evidence against wilfulness (Sterne Kessler). Be thoughtful about what you write down about others' patents; route analysis through counsel where possible.
• India. Patents are enforced through the courts (the Delhi High Court is especially active in IP). Section 107A of the Patents Act allows use of a patented invention for research and for developing information for regulatory approval, which helps early R&D but doesn't cover commercial sale. India's pre-grant opposition system lets anyone challenge a pending application.
• United Kingdom and Europe. The UK has a research (experimental use) exemption; European patents can be challenged centrally through opposition at the European Patent Office within nine months of grant. The Unified Patent Court covers many EU states (not the UK), so a single action can affect several markets.

What investors want to see#

Not a guarantee, but evidence you've looked: a short memo listing the patents you've considered, why they don't block you or how you'll handle them, and when you'll update the work.

Scripts#

Briefing a patent attorney#

"We're developing [product] to make in [country] and sell in [countries]. Attached are its elements and a shortlist of 15 patents from our own search, with our notes. Could you tell us which, if any, are real risks, what design changes might avoid them, and what level of FTO work makes sense before our seed round?"

Answering an investor's FTO question#

"We've done a first-stage FTO review with [attorney]. Two US patents are relevant; we've adjusted [element] to sit outside their claims, and documented why. One European patent expires in [year]. We'll commission a fuller search before launch in [market]."

Approaching a patent owner about a licence (with counsel)#

"We're an early-stage company working in [area] and have identified your patent [number] as potentially relevant to a future product. We'd like to explore whether you'd consider a licence for [field and territory]."

Common mistakes#

• Confusing patentability with FTO.
• Reading abstracts instead of claims.
• Searching only where you sell, not where you make.
• Ignoring pending applications and continuations.
• Doing FTO once. Update it as the design and landscape change.
• Writing casual emails about others' patents. They may be discoverable in litigation. Concluding on your own that a patent is invalid. That's a legal judgement.

Related playbooks#

• 2.04 Patent or publish first?
• 2.05 Provisional filings and the PCT timeline
• 2.07 Licence anatomy
• 2.08 Royalties, milestones and anti-stacking
• 2.19 Patent landscape mapping
• 2.20 IP budget: what to file at pre-seed

Sources#

• Sterne Kessler, When a startup really needs a formal opinion of patent counsel (also via JD Supra).
• NK Patent Law, Common freedom-to-operate mistakes.
• Klarquist, Patent opinions.
• Faegre Drinker, Practical reasons to obtain an opinion of patent counsel.
• Built In, How to avoid patent infringement when developing your product.

Worked example is illustrative; cost ranges are rough guides. Not legal advice. Last checked November 2026.