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Updated: May 22, 2020

Inventors often focus on the question of: can I get a patent?

What is often ignored is: does my invention infringe another's patent?

An erroneous assumption frequently made is that if I have a patent, I do not infringe another's patent. The reason the assumption is erroneous is because a patent gives one the right to stop others from making, using, or selling the patented invention. A patent does not give the owner the right to make, use, or sell his invention.

Therefore, when one develops a new invention and wants to commercialize the invention, one has to be concerned about whether the sale of the new invention - even if patentable - will infringe existing patents.

Here is an example. A patent already exists for a chair with four legs. You have invented a new chair with six legs. Each time you sell a chair with six legs, you will be selling a chair with four legs but it happens to have two additional legs. Thus, you will infringe the pre-existing patent with four legs.

What is a Freedom to Operate Search

To determine if your new invention might infringe other existing patents, one can conduct a freedom to operate search and have a patent attorney provide a freedom to operate opinion.

The FTO search will search for patent claims in issued patents and, in some cases, published patent applications. The focus is on the patent claims, as distinguished from the patent description.

The search of patent claims seeks to find/not find patent claims that present a possible basis for infringement. The possibility can be high to low.

Since patents are country specific, the FTO search is country specific. Thus, if you are only concerned about whether you infringe in the US, the FTO search can be limited to US patents. However, if your anticipated sales will be in foreign countries, it can be useful to conduct an FTO search in those foreign countries.

What is a Freedom to Operate Opinion

Based on the results of the FTO search, a patent attorney can then analyze the search results and opine on whether any of the discovered patents presents an issue of infringement.

Part of the analysis can include an explanation of why there is potential infringement, or why there is not potential infringement.

The opinion will usually not express an opinion in absolute terms because the issue of infringement will ultimately need to be decided by a judge or jury.

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