Most product teams learn the hard way that there is a big difference between these two searches. A company patents a potentially valuable idea, launches the product, and gets sued by a competitor for infringement. The patent may protect the company’s invention, but it does not necessarily mean the company is free to commercialize it. The reason is that one type of search asks whether your idea is sufficiently novel to be patented, while the other asks whether you can sell it without violating others’ rights. The two are different but equally important, as both can save your company from costly mistakes.
This article will discuss the differences between these two searches and explain how to choose between patentability and FTO search.
What Is a Patentability Search?
A patentability search is used to locate the prior art, or any publicly available information which might influence whether or not your invention can be patented. The search examines the novelty of the invention, its inventive step and its industrial applicability. The prior art comprises granted patents, published patent applications, journal articles, conference proceedings and product literature from any country around the world.
It is typical practice for organizations to carry out a search before filing, to gain insight into claim strategy, budgeting for the process and potentially saving the cost of a filing completely. It is better to learn in two weeks that an invention is vulnerable than after eighteen months. The search also shows inventors which features are truly distinctive and worth protecting.
What Is an FTO Search?
An FTO search, also called a clearance search, looks at a different set of documents. Instead of asking what has been published, it asks what is still in effect. The search therefore concerns itself with patents that are currently active and patent applications that are still pending in the countries where someone intends to make, use or sell a product.
Analysts compare every product feature with the claims given in the relevant patents. Since claims define the legal boundaries, this interpretation has to be accurate: a patent which appears similar in outline might not cover your design at all, while a quiet unassuming patent with broad claims may include it completely.
The result is a risk assessment rather than a final decision. It identifies which patents are important, how strong they are and what actions can be taken regarding them such as designing around them, licensing them, challenging them or proceeding with caution. It is then the responsibility of patent attorneys to convert this assessment into a legal opinion.
Patentability Search vs. FTO Search: Key Differences
| Factor | Patentability Search | FTO Search |
|---|---|---|
| Core question | Is my invention new and inventive? | Can I sell my product without infringing? |
| Documents reviewed | Patents, applications, papers, all public disclosures | Active patents and pending applications |
| Focus | Whole disclosure, including expired patents | Claims that are in force |
| Geography | Worldwide | Countries where you make or sell |
| Timing | Before filing | Before launch or market entry |
| Result | Filing decision and claim strategy | Risk map and next steps |
When Does Your Business Need Each Search?
If you have an idea and are wondering whether it is worth getting patent protection, then you should carry out a patentability search. This search will enable you to assess whether the invention is novel and not obvious when compared to existing publications and patent documents. It is particularly valuable for startups, R&D teams, and university spinouts, where patent budgets and founders’ time are limited.
Run an FTO search when a product is close to market, or when you are entering a new country, changing a design or raising money. Investors, partners and acquirers might ask for an FTO analysis as part of their due diligence, and in that case not having an FTO could delay the deal or make the transaction more complicated.
Many companies need both, in sequence. Patentability comes first since it affects the way the application is filed, and the FTO analysis comes later because it depends on a more mature product. Skipping the second one is the expensive mistake, since a granted patent gives you the right to prevent others from doing something but not the right to sell it. If your worry is that you won’t be able to protect your idea, then start with the patentability check; but if your concern is that someone might block your launch, carry out the FTO analysis first.
A Patent Does Not Guarantee Freedom to Sell
For example, a company may develop and patent a new injectable formulation containing Drug A + stabilizer B + preservative C. However, if an earlier active patent broadly claims a formulation containing Drug A + stabilizer B, the new product may still fall within that patent’s scope. The improved formulation may be patentable, but commercialization could still create an FTO risk.
A company may patent a new AAV capsid that delivers a gene more efficiently to a target organ. However, the final therapy may also use a promoter, therapeutic gene, or manufacturing process covered by someone else’s active patent. So, even though the new capsid is patentable, the overall gene therapy product may still require an FTO assessment before commercialization.
Re-Check FTO Before Launch
An FTO search performed during early development may clear a drug-device combination containing a specific injector and formulation. Before launch, the company may change the injector mechanism, manufacturing process, or target country, while new patent applications may also have been published or granted. An updated FTO can identify these new risks before commercialization.
How Ingenious e-Brain Can Help in Both Searches?
Patentability and FTO work go hand in hand at Ingenious e-Brain. Our team includes more than 300 PhDs and subject matter experts with technical and legal expertise across ICT, engineering and life sciences. That lets them read claim language the way a specialist would and apply it to your specific product.
The searches carried out combine the use of AI with human analysis across more than 15 databases covering more than 100 countries, and include native language capabilities in more than 25 countries, such as China, Japan and Korea. All projects begin with a scoping conversation.
Here is how we conduct two searches:
Patentability search:
- We examine the invention disclosure and the problem it aims to solve, then identify the key features to search on.
- We check the patent databases and the scientific literature by means of citations as well as by searching according to assignee and inventor.
- The report compares the existing art with your key features and offers an assessment of the novelty involved and the realistic chances of obtaining a patent.
FTO search:
- We look at your product, the markets you intend to target, and your commercial plans in order to define the search criteria.
- We look through the patents that have been granted and those applications which are still pending in the regions you have chosen, including those covered by the PCT.
- The report includes a key feature matrix, a claim mapping and a risk assessment sheet so that you can identify which patents present a risk and then decide whether to design around them, license them, challenge them or proceed.
- The usual duration for FTO searches is between four and six weeks.
The object is not merely to provide you with a list of patents; instead, clients leave with an understanding of how their intellectual property position influences the timing of their market entry and the competitive landscape.
Final Thoughts: Choosing the Right Search for Your Business
Let the question you are asking drive the question not the budget. If you want to know if an idea can be protected conduct a patentability search. If you want to know if you can launch safely run an FTO search.
Treat each search as a snapshot. Patent landscapes shift as applications are published and legal status changes, so refresh your FTO before key milestones.
Whatever your decision, work with a partner who can read claims accurately and tie the findings to your business goals. If you are not sure which search your business needs speak to the Ingenious e-Brain team and get expert advice on patentability and FTO search.
