Understanding the difference between a patentability search and a prior art search is essential for any inventor or business investing in intellectual property. A patentability search helps determine if your invention is new and eligible for patent protection, while a prior art search assesses the validity of existing patents and identifies potential legal risks. This comprehensive guide breaks down each type of search, highlights key differences, offers real-world examples, and explains when to use each—empowering you to protect your invention with confidence.
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Patentability vs. Prior Art Search —
What’s the Difference?
The Patent Experts
When protecting an invention, two terms often confuse inventors:
patentability search and prior art search. Although they sound similar,
each serves a distinct and critical function in the patent process.
Understanding the difference between the two can save time, money,
and legal headaches down the line.
In this blog post, we’ll break down what each search means, how they
differ, and when you need one — or both. We’ll also explore real-world
examples and answer frequently asked questions.
What Is a Patentability Search?
A patentability search, also known as a novelty search, is performed
before filing a patent application. It aims to determine whether your
invention is new and non-obvious in light of what already exists.
The focus of a patentability search is to:
● Uncover existing patents or publications similar to your
invention.
● Evaluate if your idea meets the requirements of novelty and
non-obviousness.
● Reduce the risk of your application being rejected by the USPTO
or other patent offices.
The results help inventors decide if pursuing a patent is worthwhile. It
also allows attorneys to write stronger, more strategic patent claims.
Patentability Search Example
Imagine you invent a toothbrush that sterilizes itself using built-in UV
light. Before investing thousands in a patent application, you request a
patentability search. The search reveals a few patents using UV
technology but not in the exact configuration you developed. This
gives your attorney confidence to proceed and tailor claims to
highlight your unique approach.
What Is a Prior Art Search?
A prior art search is broader and is often conducted after a patent has
been filed or granted. It involves reviewing all public disclosures that
might impact a patent’s validity, scope, or enforceability.
Prior art includes:
● Patents and published patent applications worldwide.
● Books, journals, articles, theses, and technical reports.
● Conference presentations and product manuals.
● Websites, videos, advertisements, and even social media posts.
While a patentability search is mainly forward-looking (to see if you
can patent something), a prior art search is more retrospective —
checking what’s already publicly known.
Prior Art Search Use Cases
● Litigation defense: To invalidate a competitor’s patent claim.
● Freedom to operate (FTO): To avoid infringing on existing rights
before launching a product.
● Due diligence: For mergers, acquisitions, or licensing deals.
Core Differences Between Patentability and Prior Art
Searches
Let’s highlight the key differences that set them apart:
1. Purpose
● Patentability search determines if your invention can be
patented.
● Prior art search tests the strength or validity of an existing
patent.
2. Timing
● Patentability search happens before filing a patent application.
● Prior art search occurs after filing, granting, or during legal
disputes.
3. Scope
● Patentability search focuses mainly on patents and published
patent applications.
● Prior art search covers all public knowledge, including
non-patent literature.
4. Outcome
● Patentability search guides whether to proceed with a patent.
● Prior art search supports legal actions, risk analysis, and
business decisions.
Why Both Searches Are Crucial
Many inventors mistakenly believe that one search is enough.
However, each serves a different strategic purpose.
For example, a patentability search won’t reveal a public product
launch that happened five years ago with no published patent. That’s
where a prior art search is critical. Similarly, relying solely on prior art
searches won’t help you assess whether to file a new patent.
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What’s the Difference?
The Patent Experts
When protecting an invention, two terms often confuse inventors:
patentability search and prior art search. Although they sound similar,
each serves a distinct and critical function in the patent process.
Understanding the difference between the two can save time, money,
and legal headaches down the line.
In this blog post, we’ll break down what each search means, how they
differ, and when you need one — or both. We’ll also explore real-world
examples and answer frequently asked questions.
What Is a Patentability Search?
A patentability search, also known as a novelty search, is performed
before filing a patent application. It aims to determine whether your
invention is new and non-obvious in light of what already exists.
The focus of a patentability search is to:
● Uncover existing patents or publications similar to your
invention.
● Evaluate if your idea meets the requirements of novelty and
non-obviousness.
● Reduce the risk of your application being rejected by the USPTO
or other patent offices.
The results help inventors decide if pursuing a patent is worthwhile. It
also allows attorneys to write stronger, more strategic patent claims.
Patentability Search Example
Imagine you invent a toothbrush that sterilizes itself using built-in UV
light. Before investing thousands in a patent application, you request a
patentability search. The search reveals a few patents using UV
technology but not in the exact configuration you developed. This
gives your attorney confidence to proceed and tailor claims to
highlight your unique approach.
What Is a Prior Art Search?
A prior art search is broader and is often conducted after a patent has
been filed or granted. It involves reviewing all public disclosures that
might impact a patent’s validity, scope, or enforceability.
Prior art includes:
● Patents and published patent applications worldwide.
● Books, journals, articles, theses, and technical reports.
● Conference presentations and product manuals.
● Websites, videos, advertisements, and even social media posts.
While a patentability search is mainly forward-looking (to see if you
can patent something), a prior art search is more retrospective —
checking what’s already publicly known.
Prior Art Search Use Cases
● Litigation defense: To invalidate a competitor’s patent claim.
● Freedom to operate (FTO): To avoid infringing on existing rights
before launching a product.
● Due diligence: For mergers, acquisitions, or licensing deals.
Core Differences Between Patentability and Prior Art
Searches
Let’s highlight the key differences that set them apart:
1. Purpose
● Patentability search determines if your invention can be
patented.
● Prior art search tests the strength or validity of an existing
patent.
2. Timing
● Patentability search happens before filing a patent application.
● Prior art search occurs after filing, granting, or during legal
disputes.
3. Scope
● Patentability search focuses mainly on patents and published
patent applications.
● Prior art search covers all public knowledge, including
non-patent literature.
4. Outcome
● Patentability search guides whether to proceed with a patent.
● Prior art search supports legal actions, risk analysis, and
business decisions.
Why Both Searches Are Crucial
Many inventors mistakenly believe that one search is enough.
However, each serves a different strategic purpose.
For example, a patentability search won’t reveal a public product
launch that happened five years ago with no published patent. That’s
where a prior art search is critical. Similarly, relying solely on prior art
searches won’t help you assess whether to file a new patent.
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