In innovation projects, we sometimes hear about FTO ( Freedom to Operate ) or freedom to operate (LibEx), and that's a good thing!
Indeed, throughout a costly R&D program or at the launch of an innovation, one must always be concerned with checking whether one (or more) patents have been filed by a third party along the way.
Otherwise, you risk running into a wall and becoming aware of the obstacle too late to get around it.
Often, this mistake is made by companies that are in the habit (and sometimes for good reason) of not filing patents. Their reasoning is: "Why look into patents if I don't file any myself?" Well, take our word for it at TKM: "Some have tried, and they've run into problems.".
Constantly checking your future freedom to operate throughout an R&D project, and at each of its evolutions, is a vital reflex for all companies regardless of their size.
So, where do you start? Conducting a LibEx study is a precise, complex, and potentially expensive exercise. Ideally, it should therefore focus on a very small number of similar patents identified in the global literature (such as, for example, that accessible on the TKM Platform and its DataLake).
In the vast majority of cases, this is therefore not the appropriate starting point. Before that, you need to have a complete, map-based view of the land on which your project is located.
This is precisely the role of the patent landscape: a strategic analysis tool that maps a technological environment through the identification and analysis of patents. This approach remains largely unknown and underutilized, despite its crucial role in effectively managing innovation and increasing the ROI of your R&D activities.
This article aims to help you calmly address the patent issues of your project, drawing on the field expertise of Catherine Derbois , senior patent engineer at TKM, who shares her guidelines for securing each decision, from scoping to market launch.
The patent landscape: positioning an innovation within its technological environment
A strategic analysis tool
The patent landscape is a comprehensive and thematic analysis of the patent environment within a given technical field. It is not a state-of-the-art review, a complementary and more general tool (see article…), but a genuine decision-making tool that can be used from the earliest stages of a project.
Catherine Derbois clarifies:
« A patent landscape allows you to become aware of and understand what already exists, but also to plan for the future. Is what I intend to do already protected? Who is working on this subject? What is their current technical status? In which countries are protections being sought? Am I competing with or complementing existing patents? »
The data studied comes from international patent databases (INPI, EPO, USPTO, WIPO, etc.), which are available in the TKM Platform, and which are cross-referenced and processed according to several dimensions :
- Technological: What solutions have been patented? To solve what technical problem? On which technical building blocks are the innovations focused?
- Temporally: what changes have occurred over the last 10 or 20 years? What weak signals have recently emerged?
- Geographical: In which countries are protections active? Which areas are the most strategic?
- Actors: Who are the main applicants? What is their IP strategy? Are they potential partners or direct competitors?
- Legal: At what stage of the examination are the identified patents? Are they patent applications? Or granted patents? Are the rights still active? Or are they in the public domain?
Why and when to mobilize it?
The patent landscape is a tool for managing R&D and innovation. It comes into play from the ideation stage or during the initial structuring phases, and then requires monitoring throughout a project, in order to:
- Validate the technical relevance of an idea: is it truly new? Does an equivalent solution already exist?
- Guiding development choices: Are certain technical avenues already saturated by a large number of existing and valid patents? What alternatives are available? What different technological choices are possible (pivots)?
- Developing a proactive IP strategy: Should I file patents related to this project? If so, where should I file? How do I formulate a differentiating claim? If not, how do I guarantee my future rights to exploit the project (Soleau, Secret Manual, etc.)?
- Preparing for a technological collaboration: where to find a subcontractor? who to propose a co-development to?
- Anticipating potential roadblocks: Are there any generic patents? Should I consider negotiating rights? Should I monitor certain patents to assess their technical and legal implications during development?
As you can see, the patent landscape is clearly a strategic management tool for your projects and R&D investments , regardless of the size and maturity of your company.
In practice, this analysis is useful from the first 3 to 6 months of an R&D project. It can be updated as the solution becomes clearer.
« We're not interested in securing an innovation at the end of its life cycle. We build it from the ground up on solid foundations. The landscape is both a stage and a process of strategic alignment. »
— Catherine Derbois , Senior Patent Engineer at TKM
The FTO: analyzing the legal risks associated with marketing
A targeted study with a legal purpose
Freedom to Operate (FTO) involves assessing whether placing a product or service on the market could infringe a still-valid third-party patent. It is a precise, legal, and territorially specific analysis based on a comparison between the proposed solution and the current state of the law. It addresses very concrete questions:
- Is this component covered by an active patent?
- Does the combination of these elements expose me to a risk of counterfeiting?
- Am I free to use this solution in any given country?
- Should we consider a license? A technical workaround? A reorientation of the project?
It therefore logically follows a patent landscape analysis, the results of which it expands upon, focusing on documents identified as "hot." It necessarily covers a limited number of titles identified during the landscape analysis, as well as an update of the data.
FTO = A tool for securing pre-market access
The FTO (Functional Transformation Opportunity) is activated when the product is broadly defined: the prototype is functional, the value chain is identified, and commercialization is planned. It is often triggered :
- prior to industrialization or scaling up,
- as part of a fundraising campaign or strategic partnership,
- before a trademark filing, a geographical expansion or a technology transfer.
It may also be required by financiers or major clients in regulated sectors (health, energy, mobility, etc.).
« The FTO is a form of legal insurance. However, if you undertake it without first analyzing your environment, you risk having a partial view or incurring significant costs due to a poorly defined scope. »
— Catherine Derbois , Senior Patent Engineer at TKM
How can the two approaches be combined?
Two complementary approaches, not alternatives!
It is not a question of choosing between patent landscape and FTO , but of mobilizing them in the right order, according to the maturity of the project.
Project maturity | Main objective | Tool to be mobilized |
Idea or concept | Explore, draw inspiration, position yourself, anticipate | Patent landscape |
Technical development | Refine, direct, avoid redundancies, circumvent | In-depth patent landscape |
Product ready, target market identified | Verify the legal freedom to operate, negotiate a license, challenge a competing patent | FTO |
Industrialization, fundraising | Secure your legal position, reassure stakeholders, and enhance the value of your technological assets | FTO update |
A joint that creates value
Activating both approaches in a structured way allows:
- to optimize technical choices (and therefore development costs),
- to strengthen the protection of its own assets,
- to anticipate real, not assumed, legal risks
- to gain credibility with partners, investors, and clients.
In summary
The patent landscape is a comprehensive strategic analysis that accompanies an R&D project and guides its development. Once finalized, it is ideally updated at a frequency that depends on your industry.
The FTO is a detailed and precise technical-legal analysis: it secures the exploitation of your innovations.
The two are complementary and must be used in the correct order.
At TKM, we believe that intellectual property is not an end in itself, but a tool for strategically structuring innovation. It allows us to move forward with full knowledge, greater agility, more control, and a greater chance of transforming an idea into an industrial success.
Are you launching an innovative ?
As specialists in scientific and technological intelligence, TKM provides complementary monitoring and analysis tools designed to inform your innovation strategies. Our experts can assist you in setting up a landscape or launching an FTO study, answer your questions , and help you move forward with confidence. Contact us!
