For companies launching new products internationally — particularly in technology, life sciences, consumer goods, or manufacturing — Freedom to Operate (FTO) is a critical aspect of IP risk management.
A product may be novel, valuable, and even patentable — but if it infringes third-party IP in a target market, it can trigger costly legal disputes, customs seizures, or forced redesigns.
What Is Freedom to Operate
FTO refers to the legal ability to make, use, sell, or import a product without infringing the valid and enforceable IP rights of others — especially patents — in a given jurisdiction. FTO does not assess whether your product is patentable (e.g., novel and non-obvious). Rather, it assesses whether it can be commercialized without violating someone else’s rights.
Why FTO Matters in Global Commerce
FTO is particularly important in global markets because:
Patent rights are territorial: A product may be cleared for sale in one country but infringe a patent in another.
Enforcement standards vary: Infringement liability, injunctions, and damages differ across jurisdictions.
Cross-border supply chains complicate risk: Manufacturing in one country and selling in another can expose multiple parties to liability.
Failing to evaluate FTO in advance can result in:
- Injunctions halting product sales
- Import bans and customs seizures
- Damages or settlement payouts
- Reputational harm with distributors or investors
Key Components of a Global FTO Strategy
Clearly Define Product Scope
Start by identifying the precise features, components, and intended use of the product – what is actually going to market – including:
- Technical specifications
- Manufacturing methods
- Software functionality
- Packaging and branding
Map Target Jurisdictions
Given the territorial nature of patents, conduct jurisdiction-specific FTO reviews in each country or region where you plan to:
- Manufacture
- Distribute
- Sell
- License
Search and Analyze Relevant Patents
An FTO search and assessment by legal counsel focuses on granted, enforceable patents (not pending applications, although could be assessed based on status to allowance) that are:
- In force in the relevant jurisdiction
- Directed to features or methods of your product
- Broadly drafted and not expired or lapsed
Assess Legal and Commercial Risk
Companies can decide to proceed, modify, license, or delay launch based on the results falling into one of three categories:
Low Risk: No relevant patents identified
Moderate Risk: Potentially relevant patents, but workarounds or non-infringement arguments exist
High Risk: Strong patents exist and align with core product features
Document and Update Regularly
FTO is not a one-time exercise. Patents issue, expire, or are invalidated regularly. Keep your analysis current, especially when:
- Entering new markets
- Adding new product features
- Receiving investor or regulatory scrutiny
Managing FTO in International Markets
Engage local counsel in high-risk jurisdictions (e.g., U.S., Germany, China, Japan) to interpret patent scope and enforcement trends.
Bundle FTO into product development workflows to avoid late-stage redesigns.
Consider licensing or design-arounds for blocking patents identified in your search.
Coordinate with customs enforcement if competitors attempt to enforce questionable patents at the border.
Align with funding timelines — investors increasingly expect FTO assurance before capital deployment.
While not all risks can be eliminated, a documented FTO process can help business leaders make informed, strategic choices about product design, licensing, market entry, and competitive positioning. The most effective FTO strategies integrate risk assessment into product development cycles, ensuring that potential infringement issues are identified and addressed before significant resources are committed to manufacturing and marketing.
Planning a global product launch or technology rollout? We advise companies on international FTO strategies, patent clearance reviews, and cross-border IP risk mitigation. Contact us at CrossBorder IP to schedule a confidential consultation.