Navigating the Intellectual Property Landscape: Patentability vs. Freedom to Operate (FTO) Search

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A patentability search, often referred to as a novelty search, may be necessary throughout the patenting process to protect a new invention in order to ascertain whether the invention is new (novel) and potentially innovative in light of the prior art.  

This situation can be compared to the commercial exploitation of a good (or the application of a method) and the debate over whether or not that commercial activity may violate third-party rights, and consequently, if there is freedom to operate in the market. 

Therefore, the goals of searches for patentability and freedom to operate are distinct, and both searches yield different lists of pertinent prior arts. 

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In the world of intellectual property, two critical searches play a pivotal role in shaping the success of a new product or technology: the patentability search and the freedom-to-operate (FTO) search. While both searches involve investigating existing patents, they serve distinct purposes and are conducted at different stages of the innovation process. 

The return on investment (ROI) that an invention will provide for your company depends on its patentability and freedom to operate. Businesses can reduce risk by conducting patentability and FTO searches at key periods in the innovation cycle.  

The ability to safeguard and profit from a process or product allows for the wise use of resources. Later lawsuits are also less likely as a result of this. 

When presented with a novel concept or invention, one common concern is how to safeguard it. The second, related question is if the invention or idea has any elements that are already covered by a patent in whole or in part, in order to prevent third parties from suing you for infringing them.

Patentability Search 

A patentability search, also known as a novelty search or prior art search, is an essential initial step when considering filing a patent application. The primary objective of this search is to determine whether an invention or innovation meets the criteria for patent protection.  

The search aims to identify prior art—existing patents, patent applications, published technical literature, and other publicly available information—that may anticipate or render the invention non-novel or obvious.

Key Points

  • Timing: The patentability search is typically conducted early in the product development process, before significant resources are invested in the invention. Its purpose is to assess whether pursuing a patent is a viable option. 
  • Focus: The focus of a patentability search is on the novelty and non-obviousness of the invention. The goal is to find prior art that might prevent the issuance of a patent. 
  • Scope: The search usually covers a broader range of databases and literature to identify any prior art that could be relevant to the invention. 
  • Outcome: The outcome of a patentability search helps inventors and businesses make informed decisions about whether to proceed with a patent application, modify the invention to enhance its patentability, or abandon the idea altogether. 

Freedom-to-Operate (FTO) Search 

The freedom-to-operate search, also known as clearance search, is conducted after an invention is developed and before commercialization. Its purpose is to assess whether the commercialization and sale of the product would potentially infringe on existing patents or intellectual property rights held by others. 

Key Points

  • Timing: The FTO search is performed later in the product development process, when the invention is more defined, and the intention is to bring it to the market. 
  • Focus: The primary focus of an FTO search is to identify existing patents and intellectual property rights that may pose infringement risks to the product. 
  • Scope: The search focuses on specific jurisdictions where the product will be sold or manufactured. 
  • Outcome: The outcome of an FTO search helps businesses identify potential infringement risks and develop strategies to mitigate those risks. This may involve modifying the product, acquiring licenses, or seeking legal opinions to ensure a clear path to commercialization. 

Patentability vs. Freedom to Operate 

Both types of patent searches—freedom to operate and patentability—should be carried out at various stages of the innovation lifecycle due to their subtle differences. These two search kinds teach us quite different things, though.  

Even while a technology might be patentable (and that patent might be worthwhile to pursue), a patent might not allow you to fully commercialize the invention. 

Only ideas that have never been publicly revealed, whether in a database, journal, patent application, presentation, etc., are eligible for patent protection. Concerning inventions now covered by a patent is freedom to operate.  

It’s crucial to comprehend these variations and how your invention is affected by them in order to decide what to do next. 

Importance of Patentability and FTO Searches 

Both the patentability search and the FTO search are crucial for different reasons: 

  • Protection: A patentability search helps inventors understand the existing landscape and determine if their invention is unique enough to be granted patent protection. On the other hand, an FTO search safeguards businesses from potential legal disputes and financial losses by ensuring their product doesn’t infringe on others’ rights. 
  • Informed Decision-making: Conducting both searches allows businesses and inventors to make informed decisions about their innovation. It helps them understand the risks and opportunities associated with their product and guides them in choosing the best course of action. 
  • Avoiding Litigation: By performing an FTO search, businesses can identify potential infringement risks early on and take necessary precautions to avoid litigation or the need for costly legal battles in the future. 


Both the patentability search and the freedom-to-operate search are essential processes that should not be overlooked in the journey of innovation. While the patentability search helps inventors assess the uniqueness of their invention and the possibility of obtaining patent protection, the freedom-to-operate search ensures that businesses can bring their products to market without fear of infringing on existing intellectual property rights.  

Investing time and resources in these searches can ultimately save businesses from potential legal setbacks and pave the way for successful product launches in the marketplace. 

Although these searches share some similarities, the pertinent prior art, the legal considerations, and the analyses are very different. It is crucial to comprehend the various methodologies used to address each search and the limitations associated therein. 

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