Freedom to operate (FTO)

Cross-referenced

Infringement

The unauthorized making, using, selling, or importing of a product or process that falls within the scope of a valid patent's claims. Infringement is determined by comparing each element of a patent claim to the accused product or process. If every element is present — literally or under the doctrine of equivalents — infringement exists.

First-to-file

The rule, adopted in the U.S. by the America Invents Act, that when two people independently invent the same thing the patent goes to whoever filed first, not whoever invented first. It makes the filing date critical.

File wrapper

The complete record of all communications between an applicant and the USPTO during patent prosecution — including the original application, all office actions, all responses, and the notice of allowance. Also called the "prosecution history." The file wrapper is public and permanent; courts use it during litigation to interpret the scope of claims based on statements the applicant made to the examiner.

Forward citation

A later patent that cites a given patent as prior art. Forward citations accumulate over time and are the standard quick measure of a patent's influence: a patent cited by hundreds of subsequent filings likely describes foundational technology, while one nobody cites probably had little impact. Investors and analysts count forward citations to gauge which patents actually shaped a field. The opposite of a backward citation.

Abstract

A brief summary (300 words or fewer) that appears at the top of every patent. The abstract describes what the invention does in general terms. Legally, it has almost no weight — courts use the claims to determine what a patent covers, not the abstract. The abstract is useful mainly for quickly scanning patents during a prior art search.

Anticipation

A legal standard for rejecting a patent claim. If every element of a claim was already disclosed in a single prior art reference — in a patent, article, or product — the claim is "anticipated" and cannot be patented. Anticipation requires a single source to contain every element; if you need two sources, it's an obviousness argument, not anticipation.