By Juhyun Ahn, Patent Attorney (Lee & Mock IP)

Published on August 22, 2026 

The ultimate purpose of Freedom-to-Operate (FTO) analysis lies in discovering core patents. If a core patent carrying a risk of infringement is missed, no matter how sophisticated the infringement review may be, the FTO analysis is bound to fail. Many attribute the difficulty of FTO analysis to the limits of search technology or to the burden of reviewing a vast body of patent literature. These factors are, of course, important as well. However, many years of experience working in the field has revealed that there is a more fundamental problem. The failure to discover a core patent may not be merely due to a lack of search technology.

Rather, it is not uncommon for the analyst's own technical perspective to obstruct the discovery of a core patent. Analysis begins with an understanding of technology. The analyst defines the subject of analysis and derives relevant search terms. In recent years, search prompts have increasingly been used in place of search strings, but regardless of the method, a search is ultimately conducted on the basis of technical concepts understood by the analyst. 

This is precisely where the problem lies. The analyst views the technology within the frame of their own understanding. The search string or search prompt is likewise drafted on the basis of that understanding. Accordingly, a search can never be a fully objective process. It is inevitably influenced by the perspective from which the analyst views the technology.

An actual product exists as a single physical object. A patent, however, does not deal with that physical object itself. A patent merely expresses particular aspects of the physical object in language. Accordingly, even if the same physical object is at issue, different patents may describe it in different ways. 

This problem is not simply a matter of synonyms or similar terms. In reviewing patent literature, it is not uncommon to encounter unexpected technical terms or concepts. What matters is not merely the obtainment of new search terms. What matters is realizing, in the course of that process, that another perspective exists for describing the same physical object. 

In practice, this carries significant implications. The omission of a search term can be remedied through additional review. The omission of a perspective, however, leads to the omission of the search term itself. If the analyst understands the technology only from a particular perspective, a patent drafted from a different perspective may be excluded from the very outset of the search stage.

The omission of a perspective is all the more dangerous because it is difficult to recognize on one's own. The omission of a search term tends to reveal itself relatively easily in the course of reviewing the search results. The omission of a perspective, however, makes it impossible to even know what was not searched for. The analyst may believe that they have conducted a sufficient search, when in fact they have only been exploring the technology within the perspective they have presupposed.

At first, this may appear to be nothing more than a difference in terminology. Over time, however, one comes to realize that it relates to a difference in the perspective from which the technology is viewed. Reviewing patent literature is not simply a process of confirming search results. It is also a process in which the analyst continually revises and expands the way they understand the technology.

FTO analysis is not a simple patent search task. It is a process of exploration aimed at discovering the core patent, and at the same time, a process of continually revising and expanding the analyst's own perspective. What the analyst must discover is not the patent alone. They must also discover the existence of a technical perspective they had failed to perceive.

This aspect is all the more easily overlooked the deeper one's understanding of the relevant technical field. The more the analyst believes they sufficiently understand a technology, the more naturally they come to presuppose a particular perspective. However, a deep understanding of technology is not the same as knowing every perspective from which that technology may be described. At times, it is a strong understanding itself that prevents one from perceiving the existence of other perspectives.

Perhaps the most dangerous omission in FTO analysis is not the omission of a search term, but the omission, unrecognized by the analyst, of a perspective. The analyst may believe they are objectively searching for the technology itself, when in fact they may be searching only for the technology as understood from a particular perspective. The core patent is often hidden not in unknown technology, but in another perspective on technology one believes one has already understood.

Source: https://www.lawtimes.co.kr/news/articleView.html?idxno=223151