Most inventors, managers and businesspeople are familiar with the concept of Freedom to Operate (FTO) - the ability to proceed with commercialization of a product or service without infringing the intellectual property rights of others.
The FTO focuses on the past, analyzing granted patent claims.
Not much attention is given to the concept of Freedom to Innovate (FTI). The two concepts are similar, but Freedom to Innovate is a forward-looking analysis. Looking into the future. FTI focuses on enabling continuous development and protection of new products or services. The concept of Freedom to Innovate can be better understood through the lens of the IP strategy referred to as Picket Fence.
In an offensive position, a competitor files improvements patents around a core patent of an innovative company. In doing so, it erodes the innovative company's patent value and limits its business potential. Note that the competing company deploying this offensive strategy is not able to produce or commercialize the improvements itself, because of its FTO constraints. The sole purpose of erecting the offensive IP picket fence is to attack and limit the innovative company’s future prospects.
The Picket Fence strategy can also be applied as a defense. In a proactive defensive position an innovative company "builds" a defensive picket fence around its core patent. In doing so, it creates a "safe zone" that competitors cannot patent in and secures its FTI. While many inventors and innovative companies file one or few patents to protect their core inventions, the defensive picket fence requires a strategic view of patent protection. The goal of the defensive picket fence is to identify "all business relevant" improvements and applications of the core innovation, and to put them in the public domain. The potential improvements can be described in wide scope patent disclosures or in defensive publications.
Keep in mind that a competitor can only begin analysis of the core patent and detecting its potential improvements after the patent has been made public. That is, more than 18 months after the patent's filing date. The innovative company has a significant head start on building a defensive IP picket fence. Furthermore, the innovative company has a better grasp of its business opportunities and its product pipeline. It can protect these opportunities before they become evident to competitors.
So does a defensive picket fence ensure freedom to innovate?
Yes. But take note: The FTI duration is limited.
IP defensive picket fences, like tangible fences, require maintenance and mending. Over time, business environments change, and competitive forces require realigning the product pipeline.
To ensure continuous freedom to innovate, you need to monitor and reinforce the IP defensive picket fence. In fact, this is part of the FTI's strength: instead of focusing on the past and chasing FTO, the FTI forces you to look forward and strategically plan your innovation.