Patentability vs FTO vs invalidity: which search do you actually need?

These three searches get conflated constantly, and the mix-up is costly: each answers a different question, anchors to a different date, and holds a different bar for completeness. Here is the clean version.

Patentability (novelty) search — "Is this new enough to file?"

Run before you spend on drafting and prosecution. It asks whether the inventive concept is already disclosed in the prior art, so your attorney can make a confident go / no-go / narrow-the-claims call. The anchor date is the prospective filing or priority date. "Thorough" here means finding the closest art to the inventive concept — you are not trying to find every reference, you are trying to find the ones that would matter to an examiner.

Typical deliverable: the 5–15 closest references, ranked and annotated against the inventive concept, with a documented search strategy log.

Freedom-to-operate (FTO) — "Can we sell this without infringing?"

Run before a launch, market entry or new feature. It is forward-looking and about live risk: which un-expired, in-force patent claims in your target markets a product or process might read on. The anchor is the present — expired and lapsed patents drop out. "Thorough" means strong coverage of in-force rights in the specific jurisdictions you will operate in, mapped feature by feature.

Typical deliverable: a feature-to-patent risk matrix by jurisdiction, with legal-status and patent-family checks, severity-flagged so counsel can triage and issue a clearance opinion.

Invalidity (validity) search — "Can this patent be knocked out, or will it hold?"

Run when defending against an asserted patent, preparing an opposition or re-exam, doing diligence, or pressure-testing your own grant. It targets one or more specific claims and hunts for prior art dated before that patent's priority date that reads on every element. The anchor is the target patent's priority date. This is the most exhaustive of the three — you are looking for the one reference that changes everything, which rewards stubbornness and deep non-patent-literature digging.

Typical deliverable: a claim-element breakdown with the best references mapped element by element (a claim chart), each reference's effective date verified, and a defensible strategy log.

Why mixing them up is expensive

• Commissioning a quick novelty search when you needed an invalidity hunt gets you a shallow result against a litigation-grade question.
• Treating an FTO like a patentability search wastes effort on expired patents that pose no risk and misses the legal-status work that actually matters.
• Anchoring to the wrong date silently invalidates the whole exercise — a reference that is prior art for one search is irrelevant for another.

Quick chooser

• About to file? → Patentability.
• About to launch or enter a market? → FTO.
• Being sued, opposing, or doing diligence on a specific patent? → Invalidity.

Same databases, often the same searcher — but three different questions, dates and standards of done. Naming the right one is half the job.

Not certain which fits your situation? Describe it in a line or two and I'll tell you honestly which search you need — and which you don't.