Freedom to Operate: What a Patent Clearance Search Can and Cannot Tell You
By Casey Scott McKay ·
A patentability search asks whether you can get a patent. A freedom-to-operate search asks whether you can sell your product without being sued. They are different questions with different scopes, different costs, and different conclusions, and confusing them is how companies launch into a blocking patent they were told did not exist. This article explains what an FTO analysis actually examines, why it can never be complete, how claim charting works and where it goes wrong, what an opinion of counsel is worth against a willfulness allegation and what it costs in privilege, and when a design-around is cheaper than a license. It closes with the practical framing: freedom to operate is a risk assessment with a date on it, not a clearance, and treating it as the latter is how the analysis gets misused.
IP and Technology > Patent Counseling Transactions | Article | Published 12 July 2026 - Updated 5 August 2026 | Casey Scott McKay - marksy.us
Summary. A patentability search asks whether you can get a patent. A freedom-to-operate search asks whether you can sell your product without being sued. They are different questions with different scopes, different costs, and different conclusions, and confusing them is how companies launch into a blocking patent they were told did not exist. This article explains what an FTO analysis actually examines, why it can never be complete, how claim charting works and where it goes wrong, what an opinion of counsel is worth against a willfulness allegation and what it costs in privilege, and when a design-around is cheaper than a license. It closes with the practical framing: freedom to operate is a risk assessment with a date on it, not a clearance, and treating it as the latter is how the analysis gets misused.
Keywords: freedom to operate, FTO analysis, patent clearance, infringement opinion, claim charting, design around, willfulness, enhanced damages, opinion of counsel, privilege, patent landscape, blocking patents, expired patents, continuation risk, licensing, indemnity, product launch, patent search limits, invalidity opinion, non-infringement opinion
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