Different types of patent searches
There are 3 main types of patent searches:
- patentability search (aka novelty search);
- freedom-to-operate (FTO) search (aka right-to-use or infringement search); and
- patent validity search.
What is a patentability search?
The main distinction between these patent searches relate to the difference between what is patentable vs. what infringes. Also known as a novelty search, a patentability search is the most common, affordable and practical patent search for entrepreneurs and startups. The purpose of a patentability search is to help you figure out whether your concept is unique over what already exists (“prior art”). To accomplish that, you first need to identify key features in your concept that you believe are novel. A patent searcher would then set out to find those features, or combinations thereof, in the prior art. The hope is that one or more core elements would not be found in the prior art (e.g., your concept comprises the combination of elements A, B & C; and the patent search results yielded only A & B, but not C).
It is critical to remember that a patentability search does not provide any assurances on whether it would be safe for you to sell your invented products or services. For such product clearances, you will need an infringement search which is also known as a Freedom-To-Operate (FTO) search.
What is a freedom-to-operate (FTO) search?
The purpose of a freedom-to-operate or right-to-use search is to determine whether your contemplated product would infringe any patents. An FTO search might also include potential design-arounds (i.e., any possible product modifications could avoid or reduce the risk of patent infringement).
The focus of an FTO search will center around the patent claims, and not necessarily the detailed description or drawings. The goal is to see if your product omits at least one element of each independent claim in the patents retrieved in the search. Unlike a novelty or validity search where the focus is on the prior art disclosures, the focus of an FTO search is on the claims where more time is typically required to analyze. For this reason, an FTO search typically costs significantly more than a novelty search (e.g., tens of thousands for an FTO search vs. $1,500 for a patentability search).
What is a validity search?
The purpose of a patent validity search is to gauge the validity of the claims in a granted patent by looking for prior art references showing the claimed elements. Typically, a validity search is directed to finding new prior art that was not cited during the course of the patent-pending application process (aka “prosecution history”). Such a search may be valuable prior to engaging in either a major monetization event, such as licensing or selling the patent, or in a major enforcement effort, such as litigation.
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