FTO vs. patentability vs. invalidity: choosing the right search
Three searches, three different questions. Picking the wrong one is the most common — and most expensive — mistake we see.
By Ragulika IP Editorial · · 5 min read
Clients often ask for "a patent search" when they actually need one of three quite different studies. Each looks at different documents, through a different lens, for a different decision.
| Patentability | Freedom to Operate | Invalidity | |
|---|---|---|---|
| Question | Is my invention new? | Can I sell my product? | Is this patent valid? |
| Documents | All prior art, any status | In-force claims in target countries | Prior art before the priority date |
| Compared against | Your invention | Your product's features | The target patent's claims |
| Typical trigger | Before filing | Before launch | When a patent is asserted |
Patentability: looking backwards for novelty
A patentability search looks at everything published before your filing date — patents of any status, papers, products — to see whether your invention is new and inventive. Expired patents matter here just as much as live ones.
Freedom to Operate: looking at live rights
FTO ignores whether your idea is new. It focuses on other people's claims that are currently in force where you will operate. You can hold a granted patent and still have an FTO problem.
Invalidity: attacking a specific patent
Invalidity starts with a single patent and hunts for prior art dated before its priority date that anticipates or renders obvious its claims. It is used in litigation, oppositions and licensing negotiations — and it is frequently the natural next step after an FTO search finds a high-risk patent.
A practical sequence
Many product companies run all three over time: patentability before filing, FTO before launch, and invalidity if a specific patent becomes a problem. Planning for that sequence early keeps the work — and the budget — efficient.
This article is general information, not legal advice. See our disclaimer.