While dealing with intellectual property rights, a confusing aspect is the Patent Search vs Freedom to Operate FTO Search. People often use them interchangeably which isn’t true. Therefore, you must understand the difference between the two in terms of time and money.
You perform a Patent search to analyze whether an invention follows the basic guidelines to obtain a patent, such as novelty, etc. Whereas, Freedom to operate search focuses on analyzing whether there is a risk of inviting a patent infringement lawsuit.
This article aims to clearly elucidate the differences between Patent Search vs Freedom to Operate FTO Search.
Patent Search vs Freedom to Operate FTO Search – Definition
Also known as ‘novelty search’, it’s an exhaustive search for all forms of prior art to check the patentability of an invention. There are 3 basic requirements that an invention must meet in order to be patentable. These requirements are a novelty, non-obviousness, and commercial applicability. After checking these requirements, you can decide whether or not to move forward with the patent prosecution process. In terms of costs, it’s around $500 to $3,000 which may vary depending upon your budget and your analysis requirements.
The goal of a patent search is not to assure that there is no relevant prior art. But, it’s rather to examine whether proceeding with the patent prosecution makes sense on the basis of the search results.
To know more about Patent Search Techniques follow the link. You can also take a look at our sample Patent Search.
Freedom to Operate Search
It means the freedom to operate or work on a particular product, without affecting, disturbing, or infringing the intellectual rights of others. The idea behind conducting an FTO search is to get an idea about the existing patents having claims similar to yours. It examines the language of the claims of the third-party and in-force patents, as a means of evaluating the risk of possible infringement. This helps you in identifying potential patent barriers and allows you to plan your actions accordingly.
This completely revolves around the patent claims. Basically, its main purpose is to analyze how to avoid patent infringement. The search checks if your product/service infringes any element of each independent claim of the patents which fall under the search. This generally requires more time and cost (approx. $10,000) to analyze. Since it’s a loop-based approach it costs a lot more than the patent search.
Patent Search vs Freedom to Operate FTO Search: An Example
First, let’s understand the example of a Patent Search.
Imagine that you want to file a patent for an invention. It is for a new type of car with a unique engine and emission system. Therefore, your application must follow the patentability criterion such as novelty, non-obviousness, industrial application, etc. Now, you will carry out a patent search to see if there is any prior art for it. Any extremely similar engine designs or emission systems that already exist in any form will classify as prior art. If such products already exist, then you can analyze and decide if you can make any relevant changes to it.
Now, we will see an example of an FTO Search.
Imagine that you have the same invention of the car as the previous example. However, you don’t necessarily want a patent for it. You just want to manufacture and use the model commercially. So, you will conduct an FTO Search to check for possible infringements on existing patents. This will be done by analyzing their claims section and determining if your product overlaps with theirs. Based on the results, you decide whether or not you should go for it.
Now, we can come to a conclusion in the debate of Patent Search vs Freedom to Operate FTO Search. The most important aspect is to extract the right search and opinion that suits the objectives of the search. If it is all about patenting or licensing a novel idea, then the patent search can serve the matter. Whereas, if it is more likely about getting into the market with competitors, then an FTO search is useful. Also, read about Information Concerning Patents.
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