Key Takeaways

  • A patent infringement search helps determine whether a new invention or product violates existing patent rights before launch or filing.
  • Conducting such a search early helps avoid lawsuits, licensing disputes, and wasted R&D investment.
  • Infringement searches involve analyzing active patents, expired patents, and pending applications globally.
  • Tools like the USPTO Patent Public Search and Google Patents enable access to prior art and published patent documents.
  • A patent attorney can interpret claims, assess infringement risk, and guide licensing or design-around strategies.
  • Search strategies should include claim mapping, classification codes, and international databases like WIPO PATENTSCOPE and EPO Espacenet.
  • Professional searches often use AI-driven analytics for faster detection of overlapping technologies.

Performing such a search can prevent investors and inventors from wasting valuable resources pursuing a product or design that someone else has already patented.

Searching existing granted patents and applications provides lots of information, but the process can be time-consuming and daunting for individuals who aren't familiar with the system. A patent attorney can help streamline the search and confirm that you aren't infringing on any patents.

Patent Infringement Search: An Introduction

It's never too early to perform a patent infringement search, even if you think the final invention might evolve and take a totally different form. However, checking that your concept doesn't infringe on any other inventions can give you peace of mind to pursue an innovation. It can also help you discover similar products or processes and lead you to create something totally new or add to an existing idea in a totally unique and distinguishable way.

Moreover, a patent infringement search helps keep individuals and companies from wasting precious time and money on research and development that ultimately must be thrown out because it violates an existing patent.

Why Conduct a Patent Infringement Search Early

A patent infringement search ensures that your innovation does not infringe on another party’s protected intellectual property. Conducting this search early in the product development process provides several key benefits:

  • Risk Mitigation: Identifies potential patent conflicts before costly production or marketing investments.
  • Informed R&D Decisions: Encourages innovation by revealing existing technologies and highlighting opportunities for improvement or design-around solutions.
  • Investor Confidence: Demonstrates due diligence to investors and partners, showing that the product or process has been vetted for IP conflicts.
  • Avoiding Litigation: Prevents unintentional infringement lawsuits that can result in substantial legal fees and damages.

Performing the search early also enables you to decide whether to license, modify, or abandon an idea based on the findings. Professionals often recommend combining infringement searches with freedom-to-operate (FTO) analyses for a clearer understanding of legal boundaries.

What Is a Patent Search?

A patent search, also known as a novelty search, is performed to identify patent applications and granted patents that protect existing ideas. With this knowledge, individuals and business owners can safely move forward researching something that they hope to patent soon.

Unfortunately, searching through existing patents is not an easy process. Millions of patents are listed as pending approval, and millions more have already been approved and protect current products across all markets. A potential patent holder must also consider foreign patents, past applications, and the existence of any prior art that may lead to the rejection of a patent claim or issues with litigation in the future.

Work with a patent attorney to ensure due diligence in this process. A legal expert can help you:

  • Determine prior art: Infringing on patents as well as ideas that are part of the existing body of public knowledge.
  • Minimize rejections and avoid infringements: Patent examiners may reject an application because it infringes on existing patents.
  • Prepare applications: A patent attorney can also ensure that your application is appropriately specific and meets all of the patent office's requirements for approval.

Remember that while a patent infringement search can help you avoid issues with infringement and prior art, it can also help you confirm whether the patent application is likely to pass approval from the relevant patent office. This is key to helping filers minimize costs associated with filing and modifying patent applications.

Steps to Perform a Patent Infringement Search

Performing a thorough patent infringement search involves several methodical steps. While inventors can do preliminary searches themselves, a professional or attorney-led process ensures comprehensive coverage.

  1. Define the Core Invention: Identify the unique features or claims of your product or process.
  2. Search Patent Databases: Use tools like:
    • USPTO Patent Public Search for U.S. patents and applications.
    • Google Patents for international searches.
    • WIPO PATENTSCOPE and EPO Espacenet for global patent databases.
  3. Use Classification Codes: Search by CPC (Cooperative Patent Classification) or IPC (International Patent Classification) codes relevant to your invention.
  4. Review Patent Claims: Focus on claim language rather than titles or abstracts, since infringement depends on claim scope.
  5. Analyze Legal Status: Determine whether patents are active, expired, or abandoned.
  6. Perform Claim Mapping: Compare your invention’s features against existing patent claims to identify possible overlaps.
  7. Document Results: Keep records of searched patents, claim interpretations, and reasoning for non-infringement conclusions.

Professional searches may use AI-assisted software that cross-references multiple databases and generates visual maps showing how a technology overlaps with existing claims.

What Is Patent Infringement?

Patent infringement is when a business or individual infringes on a patented invention without the patent holder's permission. A person infringes on a patent when they make, use, sell, or offer to sell patented items.

To avoid infringement, an individual or business who wants to use a product needs a commercial license to use the patented item. This typically involves paying royalties. However, patent protections do have national limitations. People in countries where an invention is not patented may make, sell, or use a patented invention in that country. An infringement search is also limited to the country in which a governing body may enforce patents.

A person may use an infringement search to check:

  • Claim amendments during a prosecution
  • Illegal uses of a patented invention
  • Licensing opportunities
  • Opportunities to monetize patents

Patent attorneys can provide valuable guidance about patent rights, how to negotiate license agreements, what adjustments you need to make to your patent, and more. A patent attorney can also advise you about other options, such as invalidating the patented invention, cross licensing, negotiating a license agreement, or waiting until the infringed patent expires.

If a patent has expired, for example, the original owner cannot file a claim against you for infringement. However, the patent owner has six years from the expiration date to pursue action against a person for infringing on the patent when it was still active.

Types of Patent Infringement to Identify During a Search

When conducting a patent infringement search, it’s important to understand the different types of infringement that could occur:

  • Direct Infringement: Making, using, or selling a patented product without permission.
  • Indirect Infringement: Contributing to or inducing another to infringe a patent (for example, supplying components).
  • Literal Infringement: The product or process directly matches all elements of a patent’s claim.
  • Doctrine of Equivalents: Even if not identical, the invention performs substantially the same function in the same way to achieve the same result.
  • Willful Infringement: Knowing and deliberate violation, which can lead to enhanced damages in court.

Understanding these types helps inventors and businesses design around existing claims or pursue appropriate licensing before commercialization.

Best Practices for Effective Infringement Searches

A high-quality infringement search balances precision and breadth. To ensure effectiveness:

  • Use Multiple Databases: Combine USPTO, EPO, WIPO, and commercial databases for complete results.
  • Include Non-Patent Literature: Search academic papers, product manuals, and public disclosures for prior art.
  • Focus on Active Patents: Prioritize patents still in force to evaluate real-world infringement risk.
  • Seek Expert Analysis: Patent attorneys can interpret complex claim language and assess the likelihood of infringement.
  • Update Regularly: New patents are published every week. Re-evaluate your search periodically, especially before market entry.

Many organizations also implement continuous monitoring systems that alert them when similar technologies are patented, helping maintain long-term IP compliance and competitive awareness.

Frequently Asked Questions

1. What is the main goal of a patent infringement search?

To ensure that a new product, process, or technology does not violate existing patent rights and to identify potential licensing or partnership opportunities.

2. How is a patent infringement search different from a novelty search?

A novelty search checks whether an invention is new enough for patenting, while an infringement search verifies that it does not conflict with existing patents.

3. How long does a patent infringement search take?

Depending on complexity, a professional search can take several days to a few weeks, especially when it includes international patents and claim analysis.

4. Can I perform a patent infringement search myself?

Yes, preliminary searches can be done using tools like the USPTO Patent Public Search or Google Patents, but a patent attorney can perform a deeper and legally defensible analysis.

5. What should I do if my product might infringe an existing patent?

Consult a patent attorney immediately. They can help negotiate a license, design around the patent, or evaluate whether the patent can be invalidated.

If you need help with a patent infringement search, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.