Freedom to Operate Search in India: Check Patents Before You Launch
A freedom to operate search checks whether your product or process may step on someone else’s patent in the country where you plan to make or sell it. It looks at granted patents and pending applications, then maps them against your product. You get a written report before you spend on production.
What it is
Freedom to operate, or FTO, asks one question: can we make, use or sell this product without infringing a patent that is in force? It is different from a patentability search, which asks whether your own idea is new. An FTO search reads other people’s claims, because the claims define what the patent protects.
Section 48 of the Patents Act, 1970 gives the patentee exclusive rights, and Section 108 lets a court grant an injunction plus damages or an account of profits for infringement. A patent runs for twenty years from the date of filing under Section 53, and it is territorial, so the search must cover the countries you will sell in. If you want to protect your own invention, see our patent search service for prior-art checks.
Who it applies to
You are about to launch a product
Take a Faridabad manufacturer adding a new hydraulic fitting to its range. It should know what claims exist before it tools up, not after the first dispatch.
You are an investor or acquirer
Say a Gurugram fund is buying a stake in a device startup. It will want to know if the core product rests on a patent held by someone else.
You received a warning letter
Another company says you infringe their patent. A focused search shows which patents matter and whether there is a design-around.
Why it matters
You find the problem before the court does
A patent suit asks for an injunction under Section 108, so discovering a blocking patent late can mean stopping sales. A search first lets you redesign, license or choose another market.
Pending applications show what is coming
Applications are published eighteen months after filing under Section 11A. A published application cannot be enforced yet, but you should know it could mature into a patent.
Your launch rests on a record
A dated report with the patents reviewed, the claims read and the conclusion reached gives your board, lender or investor something to rely on.
FTO search, patentability search and invalidity search
| Search | Question it answers | What is checked |
|---|---|---|
| FTO search | Can I sell my product without infringing? | Claims of patents in force and pending applications |
| Patentability search | Is my invention new enough to patent? | All published prior art, whether patented or not |
| Invalidity search | Can a blocking patent be challenged? | Prior art older than the blocking patent |
Here is the catch: a clear result is not a patent. It tells you where the risk is on the day of search, not that your product is safe forever. New applications publish every week.
Documents required
About your product
- Short description or specification of the product or process
- Drawings, flow charts or block diagrams
- Key features you consider new or important
About the market
- Countries where you will make and sell
- Launch date and the target customer segment
- Names of competitors or suppliers you want checked
Background papers
- Any warning letter or patent number already cited
- Your own patent filings, if any
- Supplier or licence agreements, where the technology comes from a partner
How it works
Define the product and the territory
We list each feature of your product in plain words and fix the countries to search. The scope is agreed in writing before the work starts.
Search the public databases
We search free public sources, among them InPASS from IP India, WIPO Patentscope, Espacenet and Google Patents, using keywords and classification codes for each feature.
Read the claims and check legal status
We shortlist patents that seem close and check whether each is granted, pending, lapsed or expired. Then we compare its claims, feature by feature, with your product.
Deliver the report and options
You get a written report with a claim-by-claim table and the options: go ahead, redesign, license, or challenge. Where a legal view on infringement is needed, a registered patent agent or advocate gives it.
Timelines
Time depends on scope
A crowded field and extra countries add time. We give you a delivery date after we read the product description.
Patent term is twenty years
Section 53 sets the term at twenty years from the filing date. A very old patent may already be expired, which can clear a path.
Eighteen-month blind spot
Applications are published eighteen months after filing (Section 11A), so very recent filings may not show up yet. Repeat the search before a major launch.
What happens if you skip the search
An injunction can stop sales
A court can grant an injunction for infringement under Section 108, which can halt production just as the product reaches shelves.
Damages or account of profits
Section 108 also lets the patentee choose damages or an account of profits, so the cost can exceed what you earned.
A suit can start in the district court
Section 104 puts infringement suits in a district court or higher, and the whole suit moves to the High Court if you counter-claim to revoke the patent.
Frequently asked questions
What is a freedom to operate search?
It is a search of patents in force and pending applications to see whether your product could infringe someone’s claims in a given country. Unlike a patentability search, it focuses on other people’s rights, not on whether your idea is new. The result is a written report that maps each claim against your product. We agree the scope with you before starting, so the report answers your actual launch question.
How is FTO different from a patent search for novelty?
A novelty search checks whether your invention is new, using all published prior art. An FTO search checks whether your product might infringe a patent still in force. The first helps you decide whether to file; the second helps you decide whether to launch. In practice, many clients need both, and we scope them separately so each report stays clear.
Which databases do you use for the search?
We use free public sources, namely InPASS (the IP India public search), WIPO Patentscope, Espacenet and Google Patents. IP India points applicants to InPASS and Patentscope for searching before filing. Espacenet is the EPO’s free worldwide database. We search by keyword and classification, and note exactly which sources were checked in the report.
Is an FTO search valid worldwide?
No, patents are territorial, so a search is valid only for the countries searched. A patent in India does not stop sales in another country, and the reverse is also true. Tell us where you will make, import and sell the product. We will search those countries, and the report states plainly which ones were covered.
How long does a patent last in India?
Twenty years from the date of filing, under Section 53 of the Patents Act, 1970. After that, anyone can use the invention. A patent in force may also have lapsed for other reasons, so the legal status must be checked for each one. We check status for every patent on the shortlist before we read its claims.
Can pending patent applications stop me from launching?
Not until they are granted, but you should keep an eye on them. Under Section 11A, applications are published eighteen months after filing, and any person may file a pre-grant opposition under Section 25(1) after publication. A pending application that is close to your product may grant later with similar claims. We flag these in the report so you can plan or monitor.
What can I do if the search finds a blocking patent?
You have four options: redesign around the claims, take a licence, challenge the patent, or choose another market. Opposition is possible before grant under Section 25(1) and within one year of publication of grant under Section 25(2). A registered patent agent or advocate advises on the legal route; we prepare the search record they rely on.
Does the report tell me I will not be sued?
No. It tells you what we found on the search date and how the claims compare with your product. It cannot rule out a patent that is not yet published or one outside the databases searched. Even so, a reasoned report lowers your risk. For a formal infringement opinion, a registered patent agent or advocate signs it.
Do I need an FTO search if I have my own patent?
Yes, because your patent does not give you freedom to use the invention. It only lets you stop others. A product can be covered by your patent and still fall within claims of an earlier patent held by someone else. So careful companies search even when they hold their own patent.
What it costs
Our fee plus the government fee that applies to your case, quoted before you commit. Tell us the situation and we will price it exactly.
The search itself carries no government fee, since the public patent databases are free. Fees arise only if you later file, oppose or challenge. We price the search by scope: number of features, countries and patents reviewed.
Ready to begin?
Send us a short description of your product and the countries you will sell in, and we will scope the search.