Freedom-to-operate Analysis

A "freedom to operate" study is effectively an infringement study - you search existing patents to determine if there are any viable, enforceable patents which your invention may infringe. By viable/enforceable, I mean those patents which are still in force - they have not expired, and they have not lapsed due to, for example, the non-payment of annuities or maintenance fees which are usually required in most countries. For example, here in the US, a patent may have issued in 1991 but since the normal patent term is 20 years, the patent has probably expired and therefore the patented invention is now in the public domain. Exceptions exist for some pharmaceutical patents, but in general, the lifetime of most current patents is 20 years. In addition, maintenance fees are required to be paid by 3.5/4 years after the patent issues, 7.5/8 years after the patent issues, or 11.5/12 years after the patent issues - if you don't pay the fees by 3.5, 7.5, or 11.5 years, you can still pay the fees up until 4,8, and 12 years, but there is a penalty surcharge. If you do not pay the fees at all, the patent lapses even though it it well short of its normal 20 year term.

Hi,
A FTO ("freedom to operate") analysis is to check the marketability rights of your product in any specific jurisdiction with respect to Intellectual Property Rights present in that jurisdiction. From Marketability rights, i mean whether you new launched product is infringing the rights of any 3rd party patent or not. Ahead, for SMEs, its a very important step with respect to successfully launching the product in any jurisdiction, to avoid any future patent litigation of related product, to avoid punitive damage in case of negative outcomes of any future patent litigation, to make the investor confidence in SME's product line and all. The importance of FTO in your product line cloud-computing service is also doubly important as the domain is full of patent litigation cases.
Further, yes FTO can be executed for Patent application before launching product. This will help you to analyse the risk before as the respective market is very fast and no firm will wait the granting of patent which will take an average of 3.5-4 years.
My firm is executing FTO study for global clients and it will cost you around 1400-1600 euro for the search and analysis.
Let me know if I can be of any additional help.

Best,
ashutosh

I would add one comment to those already posted -- your FTO search should include not only issued patents, but published patent applications. US PTO publishes US patent applications 18 months after filing. These are not granted as yet, but are pending. You can't know for certain that they will issue, or issue as published (inventor may need to amend claims before allowance, which will then differ from the 18 month draft). But, it can give you some insight as to whether or not you may face a future infringement suit. WIPO and US also publish pending International Applications (filed through WIPO under the Patent Cooperation Treaty), so if you want to operate in a country other than the US, you may want to search published WIPO international applications, as well of course any natively filed applications in particular foreign countries you wish to operate in (i.e., Germany, which is a foreign country relative to US patent law). In the US, any application pending less than 18 months is not yet published, so there is still a window for surprise that a patent may show up after you search. But searching only issued patents leaves some exposure to those pending as well.