A Quick FTO Guide for EIC Accelerator Applicants in a Rush

The EIC Accelerator grant financing (with blended equity option) by the European Innovation Council (EIC) and European Commission (EC) is interesting to many Small- and Medium-Sized Enterprises (SME) and startups but it demands extensive preparation and work.

While it provides €2.5 million in grant and €15 million in venture financing per project, applicants often rely on freelancers, professional writers or consultants to support them throughout the process since it takes many months to prepare all of the content that is needed for a high-quality submission.

An important part of the EIC Accelerator annexes is the Freedom To Operate (FTO) analysis. This article aims to provide a simplified guide on how to prepare an FTO in-house for companies that cannot afford to contract a patent law firm or lack the time.

The Importance of a Freedom To Operate (FTO) Analysis

An FTO analysis is a mandatory part of EIC Accelerator grant proposals and must be attached as a complete PDF. It is likewise referenced in multiple sections of the application which further increases its importance and renders it a highly relevant part of the EIC Accelerator application.

Often, FTO analyses are expensive since they are conducted by experienced patent law firms. This can present a challenge for startups that are in the early stages and pre-revenue as well as pre-product launch.

It can also present an unnecessary expense for certain software products since such technologies are generally more difficult to patent in Europe.

Still, an FTO analysis is very important for any IP-heavy business and, once a company has reached Technology Readiness Level (TRL) 5, it should have already analyzed the current IP landscape for the purpose of patenting its technology and preparing for commercialization.

What is an FTO analysis?

An FTO analysis is a way of assessing the existing Intellectual Property (IP) landscape to confirm that (1) a company is able to patent its technology and (2) it is able to commercialize its product without infringing on third-party patents. It is a core document that any DeepTech startup should be aware of since it can present a major risk if it is neglected.

A startup might think that they have unique IP but, if they have never analyzed what has already been patented, they might be wrong and might not be able to patent any of their past research and development efforts.

In general, an FTO analysis will be based on databases such as Espacenet to identify the available patents in certain technology segments which can be filtered through targeted keywords. It will then identify third-party patents that could potentially present an IP barrier and discuss them in detail to investigate how the existing patents impact the IP strategy of the company.

What if you do not have an FTO analysis?

Not having an FTO analysis when applying to Step 2 of the EIC Accelerator is a problem since it is a mandatory attachment to the proposal. In general, there are two options:

  1. Contact a patent law firm and request an FTO analysis
  2. Prepare a general FTO analysis in-house

The first option is always the safest approach since experts are experienced in this space and can add a level of assurance to the result of the analysis. Unfortunately, it is also relatively expensive and some companies would prefer to contract the preparation of an FTO analysis after the EIC Accelerator project funding is secured rather than taking the risk of not obtaining funding and paying for an expensive analysis beforehand.

This article will further elaborate on a simplified approach for the second option but it should be noted that contracting a patent law firm is recommended and the best path forward. This article is only designed to provide guidance regarding a surface-level FTO analysis for grant applications and should not be used by any company as the only assessment of third-party IP or patentability. For a thorough analysis, it is highly recommended to contract an IP law firm.

How do I prepare an FTO analysis?

An FTO analysis should look professional and have a thorough discussion of third-party patents that are relevant to the company’s IP. It should then conclude that the IP strategy of the applicant is valid and feasible.

To achieve this, it should have the following segments:

1. Company identity

Even though the FTO has not been prepared by a patent law firm, it should still have a professional look by featuring the company logo, address and whatever design is reflective of the corporate identity.

The EIC Accelerator’s remote evaluators will assess if this FTO is comprehensive and professional while a clean look and design can significantly improve that assessment.

2. Statement and Disclaimer

The FTO should begin with a paragraph that explains the nature of this document, what it contains and how it was prepared. It should act as an introduction and it should be clear that you have prepared this FTO analysis in-house and are planning to contract an IP firm for an additional FTO analysis during the EIC Accelerator project. This can also be part of the Work Packages where a service for the FTO analysis can be listed as a cost item.

The statement should likewise summarise the findings of the FTO analysis which should conclude that relevant third-party patents have been identified and discussed but no IP or commercial barriers were encountered. If barriers were encountered, the strategy to mitigate them should be explained.

The evaluators will understand that a lack of financing can be a factor in contracting an IP law firm so explaining that the FTO analysis will be repeated should be sufficient in most cases.

A table of contents should follow the statement to simplify the navigation within the document.

3. Methodology

In this section, it should be explained how the FTO analysis was prepared and what methods were used. In general, it is sufficient to explain that a database such as Espacenet was used for a global patent analysis and that specific keywords were chosen based on technology descriptions.

It is important to note that no FTO analysis is perfect since the number of patents keeps growing every day and the chosen keywords might not fully cover the entirety of the IP landscape. The quality of the FTO analysis will depend on the comprehensiveness of the keywords used and the amount of time spent researching lists and individual patents.

4. Keywords

A very simple approach to an FTO analysis is to identify innovation keyword groups based on the innovative features of the technology (see USP Development).

List the innovations of your technology and then attach multiple keywords to each list item. As an example, one could group the following keywords:

(a) Innovation: Green hydrogen generation from algae

Keywords for (a):

  • Green hydrogen (12,234 results)
  • Hydrogen algae (1,264 results)
  • Hydrogen biomass (9,234 results)
  • Hydrogen natural (13,120 results)

(b) Innovation: Autonomous drone

Keywords for (b):

  • Autonomous drone (1,876 results)
  • Artificial intelligence drone (879 results)
  • Autonomous aviation (2,456 results)
  • Autonomous flight (3,120 results)

The lists above present general examples but it is evident that the complexity of an FTO analysis will increase exponentially based on the comprehensiveness of the methodological approach.

Assuming that a company has selected 1-5 innovative components of their technology (incl. future developments), it is then recommended to list multiple keyword groups for each component and subsequently prepare multiple individual searches for each group.

Patent databases will often already sort keyword results based on relevance but it is recommended to investigate the relevance of patents and potentially use second- or third-level keywords to further filter the results and increase relevance. Since search platforms generally offer more filters (i.e. geography, date, filing status), it can also be advisable to use other means for further segmentation including the exclusion of certain keywords, if needed.

This process is tedious and iterative since it will be the responsibility of the analyst to assure that all relevant third-party patents are discovered.

A quick FTO analysis can be generated within just one hour but its validity and meaningfulness would be highly questionable. It is recommended to invest multiple days in the preparation of even a preliminary analysis.

If filtering methods were used or additional keywords were chosen to further segment the results, this information should be included in the Methodology section of the FTO analysis. The number of search results should also be included if additional filters were used.

5. Selection and Discussion of Third-Party Patents

Once the patent search has been completed, the analyst should have identified a number of patents that require closer scrutiny. Most platforms allow the selection and export of patents during the research process but it can be easiest to directly list the flagged patents in a spreadsheet.

The selected patents that require further discussion should be segmented according to their innovation in the same manner as the keywords for the patent search were categorized.

Each patent should be listed and the relevant metadata should be added (i.e. inventor, assignee, filing status, territories, etc.). For each respective patent, a discussion should be included explaining how the patent differs from the developed innovation and why this patent is neither an IP nor a commercial risk for the company.

The number of selected patents can vary widely based on the depth of the patent search and the number of selected innovations. Still, a comprehensive FTO analysis should at least have 15 patents to discuss if it is a complex and highly sophisticated technology.

6. Appendix

With all of the information presented above, the FTO analysis will already have a comprehensive and sophisticated look. With the statement provided on the first page, it should also be clear that the FTO analysis is preliminary and will be repeated during the EIC Accelerator project.

To further increase the value of the analysis, it is recommended to attach all IP information relevant to the company which will allow the evaluator to have all details relevant to the company’s IP in one single document.

Such attachments can include the following:

  • A list of all IP assets owned by the company including patents, trademarks, domain names, etc.
  • Technical graphics or image excerpts of discussed patents to support the discussion above
  • A legal analysis of certain patents, innovative features or the patentability of the company’s innovation(s)
  • Patent applications by the company that have been confirmed but not published yet
  • Scientific publications if they were relevant to the discussions above
  • Other relevant IP documents

These tips are not only useful for European startups, professional writers, consultants and Small and Medium-Sized Enterprises (SME) but are generally recommended when writing a business plan or investor documents.

Deadlines: Post-Horizon 2020, the EIC Accelerator accepts Step 1 submissions now while the deadlines for the full applications (Step 2) under Horizon Europe are:

  • January 11th 2023 (only EIC Accelerator Open)
  • March 22nd 2023
  • June 7th 2023
  • October 4th 2023

The Step 1 applications must be submitted weeks in advance of Step 2. The next EIC Accelerator cut-off for Step 2 (full proposal) can be found here. After Brexit, UK companies can still apply to the EIC Accelerator under Horizon Europe albeit with non-dilutive grant applications only - thereby excluding equity-financing.

Contact: You can reach out to us via this contact form to work with a professional consultant.

EU, UK & US Startups: Alternative financing options for EU, UK and US innovation startups are the EIC Pathfinder (combining Future and Emerging Technologies - FET Open & FET Proactive) with €4M per project, Thematic Priorities, European Innovation Partnerships (EIP), Innovate UK with £3M (for UK-companies only) as well as the Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) grants with $1M (for US-companies only).

Any more questions? View the Frequently Asked Questions (FAQ) section.

Want to see all articles? They can be found here.

For Updates: Join this Newsletter!

by Stephan Segler, PhD
Professional Grant Consultant at Segler Consulting

General information on the EIC Accelerator template, professional grant writing and how to prepare a successful application can be found in the following articles: