Why Must an FTO Be Conducted Before Filing a Platform Complaint? Attorney Shen Jinlong Discusses U.S. Patent Infringement Analysis Reports, Whose Conclusions Directly Determine the Success or Failure of a Complaint

Conclusion first: Before filing a platform complaint, you must first conduct an FTO analysis, because the conclusions of a U.S. patent infringement analysis report (FTO, Freedom to Operate) directly determine whether you have solid ground to stand on when filing a complaint. If the report shows that your product itself falls within the scope of protection of the other party's patent, and you rashly file a complaint, the other party may counter with a DMCA notice or a counterclaim, and both your listing and your account may be at risk. In practice, we generally advise sellers to obtain the analysis report before taking action; otherwise, filing a complaint is equivalent to handing the other side a knife to use against you.

1. Filing a complaint with a platform is not as simple as sending an email.

Many cross-border e-commerce sellers, when they encounter an infringement complaint for the first time, think that a few clicks in Amazon Seller Central will take down a competitor’s listing. In reality, the intellectual property complaint mechanisms on U.S. platforms are tied to the rules of the federal courts and the USPTO (United States Patent and Trademark Office). Taking Amazon as an example, patent complaints require submitting a patent number, a claim chart, and even a court or USPTO decision. If the materials you submit cannot withstand scrutiny, the other party can issue a counter-notice under Section 512 of the Digital Millennium Copyright Act (DMCA), your complaint will be rejected, and your account may receive a violation strike. More seriously, if the other party holds a valid U.S. patent, your failed complaint may instead expose your sales scale, and the other party can sue you directly for infringement in federal court. That is why, before filing a complaint, we first prepare a U.S. patent infringement analysis report and compare the claims one by one.

II. What Exactly Does an FTO Report Analyze? It Is Not Enough Just to Check a Patent Number

FTO is not simply searching whether the other party has a patent. What it must do is determine whether the technical solution of your product falls within at least one claim of the other party's patent. U.S. patent infringement analysis follows the All Elements Rule: your product must contain every technical feature in the claim; if even one is missing, there is no literal infringement. If there is no literal infringement, the Doctrine of Equivalents must also be considered to determine whether a substantial substitute exists. A qualified U.S. patent infringement analysis report will list the independent claims and dependent claims of the other party's patent, break down the technical features item by item, and then map them to your product's structure or method steps. In practice, we generally advise clients to provide product teardown diagrams, BOMs, and technical specifications; otherwise, the analysis report can only remain on paper. The report's conclusions usually fall into three categories: non-infringement, possible infringement, and clear infringement. Only with a conclusion of non-infringement or possible infringement but controllable risk can you file a complaint with confidence.

3. The response deadline is only three months; it can be extended, but it costs money.

If you are the party against whom a complaint is filed, both USPTO patent examination and court proceedings have hard deadlines. For example, in patent examination, after the examiner issues an Office Action, the applicant usually has 3 months to respond and may request an extension, but each one-month extension requires payment of an official fee, ranging from several hundred to over a thousand dollars. In federal court, a defendant generally has only 21 days after receiving the complaint to file an answer. Missing these deadlines has serious consequences. When we conduct FTO, we also verify the legal status of the other party's patent: whether maintenance fees have been paid on time, whether the patent has been invalidated, and whether there are ongoing inter partes reviews (IPRs). If the other party's patent is itself unstable, for example, if it is in IPR proceedings, your strategy for responding to the complaint can be more proactive. Many clients overlook this when they encounter it for the first time, assuming that having a patent number means the patent must be valid; in fact, every year the USPTO has a large number of patents invalidated in whole or in part in review proceedings.

IV. The key to the success or failure of a complaint often lies in the claim chart.

When a platform reviews a patent complaint, what it values most is the Claim Chart. This chart must correspond each claim of the other party's patent one-to-one with your product features. If your U.S. patent infringement analysis report is well done, this chart is ready-made. Conversely, if the report concludes that your product falls within the other party's patent, then your complaint becomes an admission of infringement. We generally advise clients, before submitting a complaint, to first have a lawyer issue an analysis report, and then, based on the report's conclusion, decide whether to file a complaint, settle, or design around. Design Around is also a common output of FTO, avoiding the other party's claims by modifying the product's technical solution, so you neither have to litigate nor affect sales. If you need to learn about intellectual property legal services in the United States and the European Union, you can check ourUS and EU trademark and patent filing page..

V. Filing a complaint without conducting an FTO analysis may trigger a counterclaim and a TRO from the opposing party.

In U.S. patent litigation, there is a very powerful weapon: the TRO (Temporary Restraining Order). If the other party obtains a TRO, it can freeze your account funds and take down your listings within 14 days. One of the thresholds for obtaining a TRO is that the applicant must prove that its patent is valid and infringed. If you previously filed a complaint against the other party, and the other party turns around and uses your complaint materials to prove that you knew the patent existed but continued to sell, your position will be very passive. In practice, we have seen many sellers who, because they did not conduct an analysis before filing a complaint, were countersued by the other party on grounds of malicious complaint; not only did they fail to keep their listings, they also had to pay attorneys’ fees. Therefore, an FTO report is not only an offensive tool, but also a defensive shield. It can tell you before you file a complaint whether this battle can be fought and whether it is worth fighting. If you are involved in markets outside the United States, such as the EU or Southeast Asia, you can also refer to our intellectual property legal services in other countries and plan a multi-country FTO strategy in advance.

6. The conclusions of the report directly affect the complaint strategy and negotiating leverage.

After you receive a U.S. patent infringement analysis report, you will find that it does not only answer whether infringement exists; it also provides claim stability analysis, invalidity evidence searches, and design-around recommendations. All of this is leverage in negotiations. For example, if the report shows that the other party's patent may be invalid, you can attach the invalidity evidence when filing a complaint, and the platform will process it much faster. If the report shows that your product does infringe, you can choose to proactively contact the other party to negotiate a license and avoid litigation. We generally advise clients to treat the FTO report as an internal decision-making document and not send it directly to the other party, because the report may contain technical details of your product and attorney opinions, which are protected by attorney-client privilege. Once it is sent to the other party, the privilege may be waived. This is especially important in cross-border business. Many sellers do not understand U.S. discovery rules and inadvertently hand over unfavorable materials to the other party. If you are still unclear about the overall framework of overseas intellectual property layout, you can first take a look at our overseas intellectual property feature.

VII. As platform rules tighten in 2026, FTO changes from optional to mandatory.

In 2026, platforms such as Amazon, eBay, and TikTok Shop have clearly tightened their review of patent complaints. In the past, merely submitting a patent number could get a listing removed; now the platforms require a claim chart, a court or USPTO determination document, and even a declaration from the complainant that they are willing to bear legal liability. This means that complaints without an FTO report will most likely be rejected by the platform. Moreover, once a platform determines that you have filed a malicious complaint, it may permanently ban your complaint privileges. Of the consultations our team handled in 2026, more than half of the sellers came to a lawyer for an analysis report only after their complaints had been rejected, by which point the best opportunity had already been wasted. The correct order is always: first obtain a U.S. patent infringement analysis report, and then decide whether to complain, settle, or design around. If you need a lawyer to step in, you can contact our lawyer team. Lawyer Shen Jinlong has many years of practical experience in the field of foreign-related intellectual property, and you can also take a look first.Attorney Shen Jinlong's Practice Introduction.

8. Whom to hire, how much it costs, and how long it takes to produce the report

US patent infringement analysis reports are usually issued by lawyers with US patent practice experience. On fees, for an FTO report covering a single patent and a single product, the market price is between $3,000 and $8,000; in complex technical fields such as biopharmaceuticals or communications standard patents, it may exceed $15,000. On timing, a standard report takes 2 to 4 weeks, while expedited handling can shorten it to 7 to 10 business days, but the fee increases by 30% to 50%. We generally recommend that clients allow at least 3 weeks, because searching, breaking down claims, and infringement comparison all take time. The report language is generally English; if it is used for platform complaints, it can be submitted directly; if it is used for internal decision-making, a Chinese summary can be requested. Remember, the report is not better simply because it is cheaper; a rough FTO may miss key claims and instead lead you to make the wrong judgment. In cross-border intellectual property, saving a little money often costs a lot.

Shen Jinlong, Attorney at Law, Foreign-related Intellectual Property Team of Guangdong Zhiming Law Firm, focuses on U.S. and EU trademark, patent, and copyright matters, providing FTO analysis, infringement complaints, TRO response, trademark registration and opposition, and other services for overseas-expanding enterprises and cross-border e-commerce sellers. Consultation hotline: 0755-25986969.

Disclaimer: The content of this article is provided for general reference only and does not constitute legal advice for any specific case. U.S. patent infringement analysis requires a case-by-case determination based on the product’s technical solution, the patent claims, and the latest case law. It is advisable to consult an attorney licensed to practice in the United States before taking any action involving a complaint, litigation, or settlement. Guangdong Zhiming Law Firm shall not be liable for any decisions made in reliance on the content of this article.