Freedom-to-Operate Patent Searches: Avoiding the Specter of Infringement

Let’s look at the two scariest patent searches! An inventor should run two different types of patent searches, and mixing them up is a huge mistake that can cost millions.

1. Patentability Search: Answers the question, “Is my invention new enough to get a patent?” To be granted a patent, an invention must be both novel and non-obviousness. This is the search that investigates those issues. It also looks at whether the subject matter is patentable, but that’s often something a patent attorney can advise you about before you have this search done.
2. Freedom-to-Operate (FTO) Search: Answers the question, “Can I legally sell this product without being sued?” This search looks at active patents whose rights are still enforceable to see if your invention contains components or processes that any of those patents protect, and to see whether your invention is committing infringement by including those parts or processes. This kind of search is much more expensive than a patentability search, and that’s because the level of detail and time necessary to do the search and analysis of results are much more extensive. It’s still less expensive than infringement litigation, however.

The Lesson: Getting a patent is risky if you haven’t done a freedom-to-operate search. Don’t rely on the USPTO to check for infringement; that’s ultimately your responsibility. Always get a freedom-to-operate search before you invest in manufacturing to ensure your path to market is clear!