Patentability vs FTO vs invalidity search is a comparison of three patent searches, and each one answers a different question. A patentability search, a freedom to operate (FTO) search and an invalidity search draw on largely the same patent databases. They differ in what is searched, which part of each document is read and which documents count.
A company that treats a patentability report as clearance to sell can launch a product that infringes. A company that orders an FTO search when it wants to attack a competitor’s patent receives a report it cannot use.
The short answer
A patentability search asks whether an invention is new and non-obvious enough to be patented. An FTO search asks whether a product can be made and sold without infringing a patent that is in force. An invalidity search asks whether prior art exists that can invalidate the claims of a granted patent.
Patentability vs FTO vs invalidity search at a glance
| Patentability search | FTO search | Invalidity search | |
|---|---|---|---|
| Question | Is the invention new and non-obvious? | Does the product infringe a patent in force? | Does prior art invalidate the claims of this patent? |
| Subject of the search | An invention disclosure | A product or process | The claims of one granted patent |
| When it is run | Before a patent application is filed | Once the product features are defined, and again before launch | When a patent is asserted, opposed, licensed or valued |
| Part of each document that is read | The whole disclosure | The claims | The whole disclosure |
| Documents that count | Patents, published applications and non-patent literature (NPL) | Granted patents, pending applications and utility models | Patents, published applications and NPL |
| Date limit | Anything made public before the application is filed | Filed in about the last 20 years, or longer where terms are extended | Published before the priority date, plus earlier-filed applications published later |
| Legal status of the documents found | Does not matter | Only rights in force or still pending | Does not matter |
| Countries | Worldwide | Only where the product is made, used, sold or imported | Worldwide |
| Result | The closest prior art, mapped to the features of the invention | Patents ranked by risk, with claim charts for the closest ones | Prior art mapped to each claim element |
In the patentability vs FTO comparison, 2 rows cause most of the confusion: the part of the document that is read, and the legal status. A 30-year-old expired patent can destroy the novelty of an invention, but a product launched today cannot infringe it.
Patentability search: is the invention new?
A patentability search, also called a novelty search, is run before a patent application is filed. It looks for prior art that describes the invention, in any country, in any language and of any age.
A patent office refuses a claim if the invention was disclosed before the effective filing date, as 35 U.S.C. 102 sets out for the US. The inventor’s own disclosures in the year before that date are an exception. The office also refuses a claim that is an obvious step from the earlier documents (35 U.S.C. 103), so the search looks for combinations as well as single documents.
The searcher reads the full text and the drawings of each document, because a disclosure anywhere in a document counts. Journal articles, product manuals and theses count as much as patents do, if they were publicly available.
The result tells the attorney whether to file and how broad the claims can be.
FTO search: can the product be sold?
A freedom to operate search starts from a product and asks whether any patent claim covers it. Only patents that can be enforced are relevant. The search is therefore limited to the countries where the product will be made or sold, and to rights that are in force or pending.
The searcher reads the claims, because only the claims define what is protected, and uses the description only to interpret them. In the US, for example, a person infringes by making, using, offering to sell, selling or importing the patented invention without authority (35 U.S.C. 271).
Invalidity search: can the patent be challenged?
An invalidity search starts from one granted patent. The same search is usually called a validity search when the aim is to test a patent and not to attack it.
The searcher takes each element of the challenged claims and looks for it in documents that are older than the patent. One document that shows every element destroys novelty, and two or three that a skilled person would have combined can show that the claim was obvious.
The invalidity vs FTO difference is one of direction. An FTO search starts from a product and looks for patents that cover it, and an invalidity search starts from a patent and looks for earlier documents that disclose it. NPL is often worth the extra effort, because the examiner is less likely to have seen it.
One product, three searches
The following example is an illustration and does not describe a real project.
A company designs a bicycle lock that opens with a fingerprint sensor and is charged through its shackle.
Before filing. The company orders a patentability search, which finds earlier locks with fingerprint sensors, but none in which the sensor sits inside the shackle socket and is covered when the lock is closed. The attorney files an application with claims built around that feature.
Before launch. After 2 years the design is fixed, and the company plans to sell in the US and the UK. Its own application is still pending, and even a granted patent would give no right to sell. An FTO search finds a competitor’s US patent that claims a lock with a battery charged through the shackle. The new lock is charged in that way, and the claim has nothing to do with the feature in the company’s own application.
After the blocking patent is found. The company can change the design, ask for a licence or challenge the patent. It orders an invalidity search on the competitor’s patent, and the search finds a conference paper by another research group, published 2 years before the priority date, that describes charging through the shackle. The attorney now has evidence to negotiate with.
4 common mistakes
- Treating a granted patent as clearance. A granted patent lets its owner exclude others. It does not clear the owner’s product against earlier patents.
- Using a patentability report as an FTO report. A patentability search does not check claims, legal status or countries, so it can miss a blocking patent.
- Limiting an invalidity search to patents. The closest prior art can be a journal article, a standard or a product manual.
- Running an FTO search only once. The design changes during development, and applications filed in the last 18 months were not yet published when the search was run, so the result has to be updated before launch.
How to choose
- The invention is not yet filed, and the question is whether to file: a patentability search.
- The product features are defined, or the product is entering a new country: an FTO search.
- A patent stands in the way, or has been asserted: an invalidity search.
- A patent is being bought, licensed or valued: a validity search on that patent, and an FTO search if the buyer will also sell products.
- Only an early indication is needed on one patent: a knock-out validity search.
Other types of patent searches, such as a state of the art search or a patent landscape analysis, answer broader questions and are outside this comparison.
What each search costs
The price of a search follows the amount of reading. The ranges below are those published by Synoptic IP, checked in October 2026.
| Search | Price range | Main cost factors |
|---|---|---|
| Patentability search | USD 150–1,200 | Complexity of the invention and depth of the search |
| FTO search | USD 800–4,000 | Number of product features and countries |
| Invalidity search | USD 1,200–10,000 | Number of claims, technology and claim charts |
FTO and invalidity searches cost more because each relevant document has to be compared with claim language, element by element.
Commission a patent search
Synoptic IP conducts all three searches for law firms and in-house IP teams. To receive a proposal with a fixed price and a delivery date, send us the question that has to be answered through our contact page.
This comparison is general information and is not legal advice.
Frequently Asked Questions
Does a patentability search show whether a product can be sold?
No. A patentability search shows whether an invention is new compared with everything published before. It does not check whether the claims of a patent in force cover the product, and it takes no account of legal status or countries. A product can be new enough to patent and still infringe an earlier, broader patent.
Can one search cover both patentability and freedom to operate?
Only partly. The two searches can share the first steps, such as the feature list, the keywords and the classifications. After that they separate, because a patentability search reads full disclosures of any age and an FTO search reads the claims of rights in force. A combined project still produces two separate analyses.
Is a patentability search the same as a prior art search?
Not exactly. Prior art search is the general term for any search for earlier documents, and both a patentability search and an invalidity search are prior art searches. An FTO search is not one, because it looks for claims that are in force and not for earlier disclosures. A clearance search is another name for an FTO search.
Which search should come first?
Where a patent filing is planned, a patentability search usually comes first. An FTO search follows as soon as the features of the product are defined, and it is updated before launch. An invalidity search has no fixed place in the sequence, because it is ordered when a specific patent becomes a problem or an asset.
Does an FTO search include non-patent literature?
No. Only a right that is in force, such as a patent or a utility model, can be infringed, and pending applications are included because they may still be granted. An FTO search therefore does not cover journal articles or product manuals. NPL matters at the next stage, when an invalidity search looks for prior art against a blocking patent.
Can the results of one search be used in another?
Often, yes. Search strings and classifications from a patentability search are a good starting point for a later FTO search on the same product. A blocking patent found in an FTO search becomes the subject of an invalidity search, and prior art from the earlier patentability search may already include documents that help.