fto-triage

/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:

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.

[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.