Protecting Privilege in the Age of Willful Infringement: How Clearstone FTO Was Built for the Realities of Patent Risk

When the Supreme Court decided Halo Electronics v. Pulse Electronics in 2016, it reshaped the landscape of patent risk. By loosening the standard for finding willful infringement, Halo sent a clear message: if you know about a patent and proceed in reckless disregard of potential infringement, you may face treble damages.

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For companies developing products in competitive industries, this created an uncomfortable paradox. To reduce risk, you must investigate. Yet that very investigation can later be used to prove that you “knew” about a patent and its risks, especially if the process is poorly structured or documented.

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That tension between the need for diligence and the fear of discovery is exactly where attorney-client privilege becomes central. And it’s the challenge that inspired much of the design behind Clearstone FTO.

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Lessons from the Front Lines

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Before ClearstoneIP, our founders lived in the trenches of patent litigation. Discovery disputes over privilege and work product were a daily occurrence. We saw firsthand how even well-intentioned diligence could unravel under scrutiny: stray comments in emails, uncontrolled sharing of drafts, and scattered documents that blurred the line between business and legal communication.

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When Halo came down, the implications were immediate and profound. We recognized that the way freedom-to-operate (FTO) investigations were being conducted and documented would have to change.

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So, when we built Clearstone FTO, we did so with privilege concerns and discoverability at the very center of the system architecture. The platform wasn’t just designed to help users “do FTO.” It was designed to help them do it safely, with legal defensibility in mind.

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Built for Privilege: Legal Intent by Design

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Clearstone FTO is not just a workflow tool; it’s a purpose-built legal and technical environment. Every layer of its architecture reinforces the framework courts recognize for privileged communications: those made in confidence, for the purpose of seeking or providing legal advice, under the supervision of an attorney.

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Attorney assignment fields. Every project, product, and review includes an explicit field to identify the supervising attorney. If that field isn’t populated, a warning icon appears. This simple design choice reinforces best practices and helps ensure the legal context is clear across every record.

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Granular access control. Privilege can easily be lost through overbroad distribution. Clearstone’s sharing function allows access to be configured at a review-by-review, or even document-by-document, level so users can precisely control who sees what.

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Clean separation between business and legal output. The “Business Report” export provides general status and metadata information about a review without exposing comments, tags, or legal analysis. This allows companies to demonstrate diligence (for example, during the damages phase of litigation) without risking a waiver of privilege.

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Work product hygiene. In traditional FTO processes, communications are scattered across Word documents, emails, chats, and spreadsheets. Each of these channels is a potential discovery landmine. Clearstone centralizes and protects those communications while giving users the ability to manage sensitive material as appropriate.

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The result is a single, coherent record of investigation that is structured to reflect legal oversight, maintain confidentiality, and, when necessary, demonstrate a company’s diligence in assessing patent risk.

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Why Structure Matters

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The distinction between a protected legal record and a discoverable business record is often one of structure and intent. The same content, when created informally in an email or spreadsheet, might be viewed as unprotected business communication. When developed under the direction of counsel, within a system built for that purpose, it stands on far firmer ground.

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Clearstone FTO users who have faced litigation have told us consistently that the platform makes them more secure. To date, ClearstoneIP has never received a request to produce information in litigation.

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But more important than those anecdotes is what they represent: confidence that a process designed around legal principles can make FTO both safer and more effective.

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Post-Halo Overcorrections: Fear-Driven Practices That Don’t Work

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In the years following Halo, two common but ultimately misguided responses emerged among companies anxious about willfulness exposure.

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1. The “Ostrich” Approach.
Some organizations tried to manage risk by avoiding patent diligence altogether. The idea was that if you didn’t look for patents, you couldn’t be accused of knowing. While superficially appealing, this approach has proven both impractical and risky. In an era of AI-driven patent search, open data, and ubiquitous analytics, it is nearly impossible to blind an organization to information that is publicly available. Courts and juries increasingly expect responsible diligence, and condemn willful blindness.

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2. The “Delete Everything” Approach.
Others took the opposite tack: perform FTO work, then erase every trace of it. The goal was to eliminate discoverable evidence, but the results were rarely as clean as intended. Deletion is hard to execute perfectly in modern data environments and, if litigation arises, wholesale purging of documents can raise questions of spoliation. More importantly, it destroys valuable institutional knowledge. Each FTO review contains legal reasoning, technical understanding, and context that future teams could benefit from.

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Both approaches spring from the same underlying fear: diligence creates exposure. In reality, the solution isn’t to look away or to erase the record; it’s to structure it correctly.

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Clearstone FTO provides that structure. By offering a protected, privilege-aware environment for FTO analysis, the platform allows companies to retain institutional knowledge, manage confidentiality, and demonstrate responsible diligence all while reducing litigation risk.

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In other words, Clearstone makes it possible to replace fear-based practices with evidence-based confidence. From fragmented to fortified.

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Privilege by Design, Not by Accident

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Clearstone FTO was built from the ground up with those realities in mind. While no software can guarantee privilege (users ultimately control how and with whom information is shared) the platform was purpose-built to make it easier to do things the right way.

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By combining structured workflow, attorney oversight, controlled access, and clear separation of legal work product, Clearstone empowers teams to conduct FTO with the confidence that they are acting responsibly and defensibly under the law.

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In short: privilege isn’t something that happens after the fact. It’s something you design for.

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Author’s note:This article is intended for informational purposes only and does not constitute legal advice.