Patent Search: What are differences between Novelty, Validity and Freedom-To-Operate Searches?

What are the different types of patent searches?

A patent search can mean different things. So when you’re talking to a patent attorney about a search, you need to be clear about what you are looking for. There are 3 main types of patent searches:

  1. patentability search (aka novelty search);
  2. freedom-to-operate (FTO) search (aka right-to-use or infringement search); and
  3. patent validity search.

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What is a patentability search (aka novelty patent search)?

The main distinction between these searches relate to the difference between what is patentable vs. what infringes. A patentability search addresses the “is my invention patentable?” question. 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 novelty 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. For example, suppose your concept has the combination of product features A, B and C. If the search results yielded showing only features A & B, but not C, then it may be a good indication to move forward with a patent application.

Of all the various types of searches, a novelty search might be the easiest for inventors to do on their own. At a minimum, you can go on Google patents to see if you find anything similar to your concept.

A novelty search is not the same thing as an infringement search. 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. Just because your invention might be patentable does not mean you would be free and clear to make your patented product. For such product clearances, you will need an infringement search which is also known as a Freedom-To-Operate (FTO) search.

What is an 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. Also known as a patent infringement search, an FTO search may lead to insights about potential product design-arounds. For example, your patent attorney may be able to help you come up with possible product modifications to avoid or reduce the risk of patent infringement.

The focus of an FTO search will center around the patent claims, and not 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 patent 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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