An infringement search or third-party patent rights search – freedom to operate search– is a broad and comprehensive search providing insight into the question of whether a specific technique can be used. This minimizes the risks of accidently infringing on an existing patent. Infringement searches are often conducted with product or technological developments, just before market introduction, or in due diligence.
A third-party patent rights search looks at existing, valid, or pending patent applications. This means only patent literature is searched. Furthermore, this type of search is limited to the countries where activities such as production, import, sales, etc. are performed.
No block or carte blanche
If existing patents are found, this does not necessarily mean that further product development or sales are no longer possible. An infringement search can reveal what modifications would be required to avoid infringing on an existing patent. Another option is to look into whether a license to the relevant patent might be an interesting and desirable option. A decision can also be made to – despite a potential patent infringement – proceed with the technology regardless. Indeed, an additional validity search may show that the existing patent is not particularly strong or may even be invalid.
Even if nothing is found during an infringement search this does not give you carte blanche to get started. No matter how well the search is performed, it is still an interpretation of the information the examiners have at their disposal. Moreover, patent applications are only published and included in patent databases 18 months after filing.
Therefore, a third-party patent rights search provides a very good indication but no guarantees. There could always be someone who thinks you are infringing. In extreme cases, it is up to a judge to decide whether that is the case.