Published on Apr 14, 2026
If you work with intellectual property - whether in-house, in private practice, or on the commercial side - you’ll know that due diligence often sits quietly in the background of deals. It’s easy to see it as a ‘process step’ rather than a strategic tool.
But in reality, IP due diligence is where deals are won, lost, or fundamentally reshaped.
A well-run due diligence exercise doesn’t just identify problems. It can uncover:
For buyers, it’s about confidence. For sellers, it’s about credibility. And for both sides, it’s about making informed decisions based on what actually sits behind the IP.
IP landscapes are becoming more crowded, more international and more technically complex. That means due diligence is no longer a simple checklist exercise.
You need to understand:
Without a structured approach, it’s easy to either miss critical issues or waste time analysing the wrong things.
If due diligence is about understanding what you have, FTO is about understanding what you can actually do with it.
And this is where things often get challenging.
FTO analysis requires you to step into a forward-looking, risk-based mindset:
It's also worth remembering that FTO analysis has inherent limits. Unpublished patent applications, for instance, are not discoverable at the time of a search - meaning a clean FTO opinion is not a guarantee of clearance, but rather a snapshot of known risk at a point in time. Framing it clearly as such is important when advising decision-makers.
Add to that the differences between US and European approaches to validity and infringement - including the growing significance of the Unified Patent Court, which now offers a single forum for enforcing patents across participating European states - and it becomes clear why this area demands careful, informed handling.
One of the most overlooked aspects of due diligence is how findings are communicated.
It’s not enough to identify risks - you need to:
Done well, this is what allows businesses to act decisively - whether that means proceeding, renegotiating, or walking away.
There’s always a practical tension in due diligence:
Knowing how to strike that balance is a skill in itself - and one that improves significantly with exposure to real-world scenarios and expert insight.
As innovation cycles shorten and global expansion becomes more common, the margin for error is shrinking.
Businesses are asking tougher questions:
Being able to answer those questions with clarity and confidence is what sets strong IP and legal professionals apart.
IP due diligence and FTO aren’t just technical exercises - they’re decision-making tools.
They shape strategy, influence negotiations, and ultimately determine whether opportunities are realised or risks materialise.
And like any critical skill, they require not just knowledge - but a practical understanding of how to apply that knowledge in real situations.
To learn best practices for conducting thorough IP due diligence projects and gain expert insights on portfolio evaluation, FTO analysis, and US/EU perspectives, attend the training course IP Due Diligence & Freedom to Operate in Practice. The expert speakers share their knowledge and will answer your questions during the discussion sessions.
Published on Apr 14, 2026 by Angela Spall