What is ‘freedom to operate’ (FTO) in grant applications?

September 15, 2023

At Venturenomix our primary task is to secure our clients’ R&D grant funding.

We know a lot about grant funding, but we also know when to bring in one of our expert partners. In this series of six blogs, we’ve teamed up with IP Attorney Jason Teng at Potter Clarkson to take a look at some of the IP-specific challenges we often come across in our R&D funding applications.

What is free to operate (FTO) and hope can I evidence that in an R&D grant application?

Freedom to Operate (FTO) is explicitly mentioned in IUK grants and EU R&D grants and refers to the right your company or consortium has to commercially exploit (sell) the innovative product, process or service being developed during the R&D grant-funded project.

In simple terms, the assessors want to know that no existing patents are being breached in the development of the novel technology proposed. If no patents or IP are being infringed, then FTO is automatically granted, but how do you persuade the R&D grant assessors this is the case?

From a grant writer’s perspective

Alex says: “There is a simple answer to this question for applicants to the EIC Accelerator grant – it is a compulsory requirement of that fund to provide a 2-page FTO analysis, ideally prepared by an IP advisory firm. An FTO analysis is a service you can buy from, for example, a patent attorney.

In most R&D grants, however, this level of detail is not a requirement. In my experience as a grant writer, Innovate UK assessors do not need much more than a sentence or two about an FTO analysis to ‘tick the box’, especially if the proposed innovation is clearly novel.”

From a patent attorney’s perspective

Jason says: “FTO analysis by nature is an open-ended exercise, which means that complexity and costs can spiral very quickly if not monitored.

An experienced patent attorney can help you perform a high-level, red-flag FTO analysis at reasonable cost to identify any potential third party patent that can block your planned commercialisation and is very difficult to design around. Nevertheless, a more comprehensive FTO analysis will be needed in future as your business grows and your commercial activities expand.”

For more IP-led insights, check out our collaborative white paper.