What an FTO Opinion Does
A Freedom to Operate (FTO) opinion identifies patent infringement risk in a defined product, system, or technical scope before that risk becomes a lawsuit, a stalled financing round, or a failed acquisition. For early-stage companies, an FTO is one of the highest-leverage legal investments available because it converts unknown risk into mapped, manageable risk.
A well-executed FTO does three things. It identifies the in-force patents that present meaningful infringement risk by a planned product. It assesses how a court would likely construe the relevant claims and whether the product reads on those claims. And it documents the analysis in a defensible written opinion that supports good-faith belief in non-infringement, a critical defense against willful infringement claims under 35 U.S.C. § 284.
When Clients Need an FTO
Before Product Launch
Bringing a new medical device, aerospace component, or automotive system to market without an FTO is a category of risk most boards no longer accept. Litigation discovery is expensive, treble damages for willful infringement can be ruinous, and injunctions can take a product off the market entirely.
Before Fundraising
VCs increasingly expect an FTO as part of due diligence, particularly at Series A and beyond. Investors are not patent attorneys; they want a documented opinion from counsel that the company can operate without facing serious legal risk. The absence of an FTO is a red flag that has the potential to derail financings.
Before M&A
Acquirers conducting IP due diligence will commission their own FTO if the target has not. An existing, well-documented FTO accelerates diligence, reduces deal friction, and signals operational maturity to buyers.
Before Investing in Manufacturing or Inventory
Capital expenditures committed to a product later found to infringe become sunk cost. An FTO conducted before tooling, manufacturing scale-up, or inventory build is far cheaper than the alternative.
Our FTO Process
Each FTO begins with a defined technical scope, meaning we identify the product, system, or feature set being analyzed. Scope definition is the most important step; an FTO that is too narrow misses risk, and one that is too broad becomes prohibitively expensive.
From there, we conduct prior art searches focused on in-force patents in the relevant technology space, perform claim construction on potentially relevant patents, and prepare claim charts comparing each potentially relevant claim against the product on an element-by-element basis. The deliverable is a written opinion describing identified patents, our analysis of each, and our overall risk assessment.
What an FTO Cannot Do
No FTO is a guarantee of non-infringement. Patent landscapes evolve, pending applications remain unpublished for up to 18 months, and claim construction is inherently uncertain until tested in litigation. What a thorough FTO provides is structured, defensible, well-reasoned risk assessment and the documented good-faith analysis that serves as a powerful shield if a dispute later arises.