fto-triage official

---
name: fto-triage
description: >
  Freedom-to-operate triage — a structured first look at potentially blocking
  patents, not an FTO opinion. Use when a product, process, or feature is
  being evaluated for blocking patents, when asked whether anything stops a
  launch, or to build a claim-chart first pass against the most plausible
  patents before patent counsel review. This skill never concludes a product
  is clear to launch.
argument-hint: "[describe the product / process / feature and jurisdictions — or just the subject and I'll ask]"
---

# /fto-triage

**This is not a freedom-to-operate opinion.** A formal FTO opinion requires a
comprehensive search, full claim construction, and element-by-element
infringement analysis by registered patent counsel. Patent infringement is
strict liability; willful infringement triples damages. A "no obvious blocking
patents" result from this skill means the triage didn't find one — it does
not mean the product is clear.

## Instructions

1. Read `~/.claude/plugins/config/claude-for-legal/ip-legal/CLAUDE.md`. If it
   contains `[PLACEHOLDER]`, stop and direct to `/ip-legal:cold-start-interview`.
2. Follow the workflow below.
3. Run intake (product/process, technical detail, jurisdictions, known patents,
   timing).
4. Run a preliminary patent search if a connector is available (Solve
   Intelligence Patents, or other patent-research MCP). Otherwise say
   so in the output and proceed with the patents the user has supplied.
5. For the 2–5 most plausible patents, build a claim-chart first pass against
   each independent claim — element by element. Literal read first; flag
   doctrine-of-equivalents separately; flag indirect / divided infringement.
6. List open questions a real FTO study would resolve (enforceability,
   prosecution history, IPR outcomes, license availability, enforcement
   history of the assignee).
7. Write the triage memo to the matter folder or practice outputs folder. Apply
   the work-product header per role.
8. End with recommended next steps, a willfulness note (knowledge of specific
   patents factors into willfulness if the company proceeds without further
   counsel review), and the non-lawyer gate if the role is non-lawyer.

This skill never concludes that a product is clear to launch. If uncertain,
flag — patent counsel decides.

## Examples

```
/ip-legal:fto-triage "an on-device speech recognition model for consumer wearables, US launch first"
```

```
/ip-legal:fto-triage
```

---

## THIS IS NOT A FREEDOM-TO-OPERATE OPINION

**The loudest guardrail in the plugin. Say this at the top of every output. Do
not drop it. Do not soften it. Do not let the reader skim past it.**

> **This is not a freedom-to-operate opinion.** An FTO opinion is a professional
> legal judgment, usually by registered patent counsel, based on a comprehensive
> search, full claim construction, and an element-by-element infringement
> analysis against each claim of each relevant patent. This triage is a
> structured first look at what might be out there. A "no obvious blocking
> patents" result means the triage didn't find one — it does not mean the
> product is clear. Patent infringement is strict liability; willful
> infringement (which can follow from knowing about a patent and proceeding
> anyway) triples damages under 35 U.S.C. § 284. The decision to launch, make,
> use, sell, or import is a business decision informed by a formal FTO study
> and counsel's judgment — not by this triage. A registered patent attorney or
> agent evaluates before anyone relies on this for a product decision.

Under-flagging a blocking patent is a one-way door — a product launched, a
deposition a year later, treble damages on the table. Over-flagging is a
two-way door — the attorney narrows the list in a read-through. Stay on the
two-way door side. Always.

### A note on willfulness

Reading this triage is reading something about patents. Reading something about
patents can, in some circumstances, factor into a willfulness analysis down the
road. This is one reason the output is marked as privileged when a lawyer is
using it, and why the non-lawyer output is framed as research to take to
counsel. Do not discuss specific patents surfaced by this triage outside
privileged channels.

---

## Matter context

**Matter context.** Check `## Matter workspaces` in the practice-level CLAUDE.md. If `Enabled` is `✗` (the default for in-house users), skip the rest of this paragraph — skills use practice-level context and the matter machinery is invisible. If enabled and there is no active matter, ask: "Which matter is this for? Run `/ip-legal:matter-workspace switch <slug>` or say `practice-level`." Load the active matter's `matter.md` for matter-specific context and overrides. Write outputs to the matter folder at `~/.claude/plugins/config/claude-for-legal/ip-legal/matters/<matter-slug>/`. Never read another matter's files unless `Cross-matter context` is `on`.

Patent FTO matters are particularly common candidates for **clean-team** or
**heightened** confidentiality at matter-open. Respect the matter's confidentiality
marking from `matter.md`.

---

## Load the practice profile first

Before running triage, read `~/.claude/plugins/config/claude-for-legal/ip-legal/CLAUDE.md`. Pull:

- **Role** from `## Who's using this` (lawyer vs. non-lawyer changes the
  work-product header and the non-lawyer gate below).
- **Registered in** and **enforce where** from `## IP practice profile` and
  `## Enforcement posture` (useful for defensive-portfolio cross-check and for
  jurisdiction defaults).
- **Patent OC** from `## IP practice profile` → `Outside counsel roster` for
  the routing step.
- **Integrations** from `## Available integrations` — specifically Solve
  Intelligence, or any patent-research MCP. Determines what searches
  are available.
- **Decision posture** from `## Decision posture on subjective legal calls` —
  this skill never concludes "does not infringe."

If `~/.claude/plugins/config/claude-for-legal/ip-legal/CLAUDE.md` contains `[PLACEHOLDER]` or `[Your Company Name]`, surface this bounce:

> I notice you haven't configured your practice profile yet — that's how I tailor posture, jurisdictions, and approval chain to your practice.
>
> **Two choices:**
> - Run `/ip-legal:cold-start-interview` (2 minutes) to configure your profile, then I'll run this tailored to YOUR practice.
> - Say **"provisional"** and I'll run this against generic defaults — US jurisdiction, middle risk appetite, lawyer role, no playbook — and tag every output `[PROVISIONAL — configure your profile for tailored output]` so you can see what I do before committing.

### Provisional mode

If the user says "provisional," run the FTO triage normally using these generic defaults: middle risk appetite, lawyer role, US jurisdiction, no playbook (do the full analysis rather than matching against a position list). Tag the reviewer note and every finding block with `[PROVISIONAL]`. At the end of the output, append:

> "That was a generic run against default assumptions. Run `/ip-legal:cold-start-interview` to get output calibrated to YOUR practice — your playbook, your jurisdiction, your risk appetite. 2 minutes."

---

## Intake

Ask in a single batch:

> I'll run an FTO triage. A few questions first:
>
> 1. **Product, process, or feature.** What's being made, used, offered for
>    sale, sold, or imported? Describe it plainly — the technical essence, not
>    the marketing pitch.
> 2. **Technical detail.** Any architectural diagrams, claim-relevant specs, a
>    public product page, or a spec document you can share? (The more detail,
>    the more real the triage.)
> 3. **Jurisdictions.** Where will it be made, used, sold, offered for sale,
>    imported? (Each is a separate infringing act under 35 U.S.C. § 271. I'll
>    default to the US if you don't specify.)
> 4. **Known patents.** Are there patents already on your radar — a competitor's
>    portfolio, a known SEP pool, an NPE letter, something an engineer
>    mentioned?
> 5. **Timing.** How close is this to launch? If it's months out, the triage
>    is early and design-around is on the table. If it's already shipping,
>    we're in cover-our-downside mode.

Wait for the answer. If the description is vague ("an AI agent," "a database"),
push once:

> Give me the technical essence — what does the thing do, how does it do it,
> and what's the piece you think might be novel? Patent claims live at that
> level.

---

## Scope — utility patents only

**This skill analyzes utility patents.** If a patent on the radar has a `D`,
`RE`, or `PP` prefix, flag it and route out, do not claim-chart it:

- **`D` (design patent).** Different test entirely — ordinary observer under
  *Egyptian Goddess, Inc. v. Swisa, Inc.*, 543 F.3d 665 (Fed. Cir. 2008) (en
  banc), overall ornamental appearance, no claim chart. Route to the
  `infringement-triage` design patent branch and to design patent counsel.
  **Design patents are not analyzed in this FTO triage** — a design-patent
  overlap must be flagged as a separate workstream.
- **`RE` (reissue).** Treat as a utility patent with added §252 intervening-
  rights and recapture-rule flags.
- **`PP` (plant patent).** Route to plant-patent counsel; out of scope.

Also cross-flag **trade dress**: if the product's appearance is the risk,
the same facts may be a §43(a) product-configuration claim that requires
secondary meaning (*Wal-Mart Stores, Inc. v. Samara Bros., Inc.*, 529 U.S.
205 (2000)) and non-functionality (*TrafFix Devices, Inc. v. Marketing
Displays, Inc.*, 532 U.S. 23 (2001)). Flag as a parallel track.

---

## Search

### What the user has connected

Read `## Available integrations`:

- **Solve Intelligence connected:** run a preliminary search across the
  technical description. Note the date of the search, the query used, the
  jurisdictions covered, and any date window (current in-force patents; recent
  published applications).
- **Patent-research MCP (Google Patents Public Datasets, PatSnap
  export): available:** use it.
- **None of the above:** explicitly say so. Do not infer patents from model
  knowledge and present them as search results.

### Fallback when no patent database is connected

Write this exact statement in the output:

> **No patent database search was run.** This triage did not hit Solve
> Intelligence Patents, USPTO Patents Full-Text, EPO Espacenet,
> Google Patents, PatSnap, or any other patent corpus. A structured search
> across the jurisdictions in scope is required before relying on this triage
> for any launch decision. The analysis below is limited to patents and
> applications the user has named or that come up in the conversation.

Then proceed. The claim-chart-first-pass work below is still valuable — just
label the scope honestly.

### Supplementary signals (not a substitute)

If available and the user allows, sweep for non-patent signals that flag a
patent concern:

- **Competitor patent filings** around the product area.
- **Known NPE targeting** of the technology class (e.g., network-coding NPEs in
  Eastern District of Texas / Delaware / Western District of Texas).
- **Standards-essential declarations** (IEEE, ETSI, 3GPP) if the product touches
  a relevant standard.
- **Reported litigation** in the technology space (CourtListener / RECAP, Unified
  Patents, Lex Machina).

Each signal is a reason to look harder, not a patent hit. Mark them as signals
in the output, not as identified patents.

---

## For each relevant patent found or supplied

Capture:

- **Patent number** (with application number if different) and **jurisdiction**
- **Title**
- **Assignee and inventors**
- **Priority date and issue date**
- **Expiration date** (per USPTO PAIR / PatentCenter / foreign equivalent —
  check term adjustments, term extensions, and terminal disclaimers)
- **Maintenance fee status / in-force status** — if a US patent has failed a
  3.5/7.5/11.5-year maintenance fee, it's expired and not a bar
- **Claim count — independent and dependent**
- **Independent claims as issued** (and any relevant amended claims from
  post-grant proceedings)
- **Related proceedings** — IPRs, PGRs, reexaminations, litigation history,
  PTAB outcomes
- **File wrapper highlights** — prosecution disclaimers, amendments that
  narrowed the claims, statements about scope

**Do not supplement silently.** If a search surfaces a patent, attribute the
result. If the user mentioned a patent, say that. Never invent a patent
number, never "fill in" a claim element the file doesn't support, never
imagine an expiration date. If maintenance fee status isn't available, write
"maintenance fee status not verified from search result — confirm in PAIR
before relying on in-force status."

---

## Claim-chart first pass

This is the core of the triage. Pick the patents with the most plausible read
on the product — usually the 2–5 with the closest technical mapping — and walk
each independent claim element-by-element.

**For each selected patent, write out one claim chart per independent claim:**

| Claim element | Does the product practice this? | Basis |
|---|---|---|
| "A [preamble phrase]" | [yes / no / possibly / depends on construction] | [one sentence — what in the product maps; what doesn't; what's ambiguous] |
| "comprising [element 1]" | [yes / no / possibly] | [mapping or gap] |
| "wherein [element 2]" | [yes / no / possibly] | [mapping or gap] |
| [continue for every element] | | |

**Rules for the chart:**

- **Every element matters.** A claim is infringed only if the accused product
  practices every element of at least one claim (all-elements rule). Missing one
  element literally means no literal infringement on that claim. Do not skip.
- **Doctrine of equivalents is a separate pass.** First chart literal
  infringement. Then, for any "no" elements, note whether a DOE read is
  plausible (insubstantial differences / function-way-result). Flag DOE
  analysis as requiring attorney judgment — prosecution history estoppel and
  claim vitiation are common bars and the triage does not adjudicate them.
- **Claim construction is the attorney's job.** Where a term could be
  construed narrowly or broadly and the answer changes the infringement read,
  flag the term and note both constructions. Do not pick one silently.
- **Indirect infringement (induced, contributory) and divided infringement**
  are flags only. Do not attempt a full analysis; note that these may apply and
  require patent counsel.

> **Patent systems differ by jurisdiction.** The US claim chart (all-elements rule, doctrine of equivalents, prosecution history estoppel, §284/§289 damages) does not transfer to other systems:
> - **Germany:** Utility models (Gebrauchsmuster), the Schneidmesser/Kunststoffrohrteil questions for DOE, bifurcated validity/infringement proceedings.
> - **China:** Utility models (shiyong xinxing), CNIPA examination, different claim construction.
> - **Japan:** Utility models, JPO examination, a narrower DOE.
> - **Europe (unified patent court):** UPC procedure as of 2023.
>
> When non-US jurisdictions are in scope: "This analysis uses the US claim-charting framework. A product manufactured in China and sold in the EU needs CNIPA and EP analysis, not a US claim chart. I can flag the issues a US analysis surfaces, but the infringement and validity calls require [jurisdiction]-specific review."

**Decision posture:** per the practice profile, this skill never concludes "no
infringement." Either:

- "Product practices every element of Claim X as written; attorney review
  required before proceeding."
- "One or more elements are not clearly present; attorney review required to
  assess literal infringement and doctrine of equivalents."
- "Claim construction is dispositive on element [Y]; attorney construction
  required before proceeding."

---

## Open questions

Every patent surfaced in the triage should produce a list of open questions
that a real FTO study would answer. Examples:

- Is the patent enforceable — has the assignee been named, any standing issues,
  any inventorship defects, any recorded assignments?
- What did the applicant say about term [X] in prosecution, and does that
  limit the claim?
- Has this claim been the subject of an IPR or reexamination — what did the
  PTAB say about scope or validity?
- Is there a license already available (standards pool, patent marking, open
  patent non-assertion commitment)?
- What's the real-world enforcement history of this assignee?

List them plainly.

---

## Recommended next steps

Bucket by what the triage found:

- **If every element of an independent claim maps to the product (literal read):**
  *Stop and get patent counsel.* Options typically include formal FTO opinion,
  design-around, license, challenge validity (IPR/PGR), or (rarely) proceed at
  risk. The choice is a business decision informed by counsel.
- **If elements cut both ways or claim construction is dispositive:**
  Full FTO study by registered patent counsel. Do not launch on this triage.
- **If the patent appears expired, abandoned, or unenforceable:** Attorney
  confirms the in-force status — the triage does not.
- **If no patents were identified in the search but no database access
  existed:** Formal search is the next step, not a launch decision.
- **Always:** flag a willfulness risk. If the triage surfaces a specific
  patent, the company now has knowledge of it. Proceeding without further
  analysis can support a willfulness finding. Counsel should document the
  path forward.

---

## Output format

Prepend the work-product header from `~/.claude/plugins/config/claude-for-legal/ip-legal/CLAUDE.md` `## Outputs`. Mark the document as privileged if the role is lawyer; see the non-lawyer gate below if not.

```markdown
[WORK-PRODUCT HEADER]

# FTO Triage — First Pass (NOT AN OPINION)

**This is not a freedom-to-operate opinion.** A formal FTO opinion requires a
comprehensive search, full claim construction, and element-by-element
infringement analysis by registered patent counsel. Patent infringement is
strict liability; willful infringement triples damages. A "no obvious blocking
patents" result means the triage didn't find one — it does not mean the product
is clear. A registered patent attorney or agent evaluates before anyone relies
on this for a product decision.

**Triage result:** [GREEN / YELLOW / RED — one sentence why]

## Subject

- **Product / process / feature:** [description, technical essence]
- **Technical detail relied on:** [what was reviewed — spec, diagram, public
  page, code, engineer's description]
- **Jurisdictions in scope:** [make / use / sell / offer / import — per § 271]
- **Timing:** [pre-launch / near-launch / shipping]

## Search scope

- **Databases searched:** [Solve Intelligence / Google Patents /
  Espacenet / PatSnap — or "no database search run"]
- **Query / approach:** [query text, technology classes, keywords, classifications]
- **Date / date window:** [search date; in-force patents + applications
  published since YYYY-MM-DD]
- **Jurisdictions covered by the search:** [list]
- **What wasn't searched:** [named-assignee sweeps, SEP declarations, NPE
  portfolios, design patents, foreign equivalents — as applicable]

*If no database search was run:* **No patent database search was run.** This
triage did not hit Solve Intelligence Patents, USPTO Patents Full-Text,
EPO Espacenet, Google Patents, PatSnap, or any other patent corpus. A
structured search across the jurisdictions in scope is required before
relying on this triage for any launch decision.

## Patents identified

| Patent | Jurisdiction | Assignee | Priority / Issue | Expiration | In-force? | Source |
|---|---|---|---|---|---|---|
| [number] | [US/EP/...] | [assignee] | [dates] | [date] | [yes/no/unverified] | [search result link or "user-supplied"] |

## Claim charts — first pass

### [Patent number] — independent Claim [N]

> "[Exact text of Claim N]"

| Element | Practiced by the product? | Basis |
|---|---|---|
| [element 1] | [yes/no/possibly] | [mapping or gap] |
| [element 2] | [yes/no/possibly] | [mapping or gap] |

**Literal read:** [every element maps / one or more elements do not clearly
map / claim construction is dispositive on element [Y]]

**Doctrine of equivalents (flag only):** [DOE read plausible on element [Y] —
attorney construction required / not plausible on the surfaced elements /
prosecution history suggests estoppel]

**Indirect / divided infringement (flag only):** [note if any read depends on
induced, contributory, or divided infringement theories — attorney analysis
required]

*(Repeat for each independent claim of each selected patent.)*

## Open questions

- [question 1]
- [question 2]

## Signals (not confirmed patents)

- [competitor filings / NPE activity / SEP declarations / litigation in the
  technology space — each a reason to search harder, not an identified patent]

## Recommended next steps

- [full FTO study by patent counsel — first-line recommendation unless the
  search found nothing and comprehensive search already ran]
- [design-around options if a literal read was found]
- [license / IPR / PGR / at-risk analysis as counsel directs]
- [routing per `~/.claude/plugins/config/claude-for-legal/ip-legal/CLAUDE.md` —
  patent OC named in the practice profile]

## Willfulness note

This triage surfaces specific patents. Proceeding with the product without
further counsel review after this knowledge can support a willfulness finding
and enhanced damages under § 284. The path forward should be documented by
patent counsel; the business decision to launch, design around, or license is
informed by a formal FTO opinion and counsel's judgment, not by this triage.

## Citation verification

Every patent number, claim quote, date, and prosecution fact in this memo must
be verified against the authoritative source (USPTO PatentCenter / PAIR, EPO
register, national equivalent) before relying on it. Claim quotes are the
most common error site — a single word changes the analysis. Do not cite a
result you cannot open.
```

---

## Non-lawyer gate

Before issuing the output, read `## Who's using this`. If the Role is Non-lawyer:

> This output is a research triage, not legal advice. Launching, continuing to
> sell, or investing in this product based on this triage alone has legal
> consequences — including strict liability for patent infringement, with
> enhanced damages for willfulness. Patent counsel needs to evaluate before
> you move.
>
> Here's a brief to bring to an attorney — it'll cut the time the conversation
> takes:
>
> [Generate a 1-page summary: the product description, the jurisdictions in
> scope, the search run (and what wasn't searched), the patents surfaced and
> the claim-chart-first-pass reads, the open questions, and the three
> questions to ask the attorney.]
>
> If you need to find a licensed attorney, solicitor, barrister, or other authorised legal professional in your jurisdiction: for US patent work, a registered patent attorney or patent agent is required (not every lawyer is registered — the USPTO
> Office of Enrollment and Discipline maintains a directory). For other jurisdictions, use the relevant patent office register (EPO, UK IPO, etc.). Your professional regulator's referral service is a starting point (state bar in the US, SRA/Bar Standards Board in England & Wales, Law Society in Scotland/NI/Ireland/Canada/Australia, or your jurisdiction's equivalent); specifically ask for registered
> patent counsel.

Deliver the full triage memo alongside the brief. Do not withhold the analysis.
Flag that the triage itself is a privileged research document and should not
be forwarded to non-attorney third parties.

---

## Output location

If matter workspaces are enabled and a matter is active, write the output to
`~/.claude/plugins/config/claude-for-legal/ip-legal/matters/<matter-slug>/outputs/fto-triage-<subject-slug>-YYYY-MM-DD.md`.
Otherwise write to
`~/.claude/plugins/config/claude-for-legal/ip-legal/outputs/fto-triage-<subject-slug>-YYYY-MM-DD.md`
and surface the path.

Append a one-line entry to the matter's `history.md` if a matter is active.

---

## Close with the next-steps decision tree

End with the next-steps decision tree per CLAUDE.md `## Outputs`. Customize the options to what this skill just produced — the five default branches (draft the X, escalate, get more facts, watch and wait, something else) are a starting point, not a lock-in. The tree is the output; the lawyer picks.

## What this skill does not do

- **Issue an FTO opinion.** Ever. The loudest guardrail in the plugin.
- **Construe claims.** Where construction is dispositive, it flags the term and
  both plausible constructions. It does not pick one.
- **Adjudicate validity.** It may note known PTAB proceedings; it does not
  opine on novelty, obviousness, § 112, § 101, or enablement.
- **Draft patent claims.** This plugin does not go there; route to prosecution
  counsel.
- **Assess damages exposure.** Damages modeling is an expert's job.
- **Handle trade-secret or trademark analysis** — use `/ip-legal:infringement-triage`
  with the right mode.
- **Quote outputs to counterparties or non-privileged audiences.** This is a
  privileged research document.

---

## Tone

Technically precise. Element-by-element. Every flag is specific to a claim
element or a known patent. No hedging prose in the body — the guardrails at
the top and bottom do the scope work, and the analysis does the analysis. The
reader should leave knowing what the triage looked at, what it didn't, and
what the next step is.