arising from a 1989 patent application related to the E8 promoter filed by Agritope, an agri-
cultural biotechnology company.
An informative way of analyzing the FTO search results is to construct a timeline of
scientific literature, patent applications, and issued patents on the specific technology and
on potentially overlapping subject matter. Ordering the patents and published applications
according to their priority dates (also known aseffective filing dates) reveals important
relationships. For example, it reveals what publications or patents are prior art against
newer patents. Since patents may only be granted if the claims are both novel and non-
obvious over theprior art, this analysis reveals the relative dominance of earlier, broader
patents over later, narrower patents. Figure 14.4 illustrates the IP priority timeline for the
E8 promoter. A thorough FTO analysis may require direct contact with the researchers
and, in this analysis, it was learned from the authors of the Deikman and Fischer (1988)
publication that they did not apply for patent protection prior to their publication. This
information was also confirmed by searching patent databases. On the basis of this infor-
mation, it was presumed that the basic E8 promoter technology was in the public
domain, but this conclusion required thorough review and documentation of the published
literature or prior art relative to the subject matter of subsequent patents.
As shown in the priority timeline, the Deikman and Fischer (1988) and Giovannoni et al.
(1989) publications initially describe the E8 promoter technology. This precluded the
Figure 14.3.A family of related tomato E8-related patents derived from the parent application USSN
448,095 [from Fenton et al. (2007)].
14.5. FREEDOM TO OPERATE (FTO) 335