The Indian Patent Office does not search on an applicant’s behalf before filing. An applicant who wants to know whether an invention is new, or whether making it would infringe someone else’s patent, has to find out. Both can be done, largely with free tools, and both are worth doing before money is spent on drafting.
Quick reference
| Patentability search | Is this new and inventive? Looks at everything published, anywhere, ever |
| Freedom-to-operate search | Would making or selling this infringe a patent in force in India? Looks at live Indian patents only |
| Free databases | InPASS (India), Patentscope (WIPO), Espacenet (EPO), Google Patents |
| Blind spot | Applications filed in the last eighteen months are not yet published |
| Best method | Classification codes first, keywords second |
Two different questions
A patentability search asks whether the invention is new and non-obvious. The relevant material is everything published anywhere in the world before the priority date — patents, applications, journal articles, conference papers, product manuals, websites. A single earlier disclosure of the same thing, in any language, is enough to defeat novelty.
A freedom-to-operate search asks something narrower and more consequential: whether making, using or selling the product in India would fall within the claims of a patent that is in force in India now. Foreign patents are irrelevant to it; expired and lapsed Indian patents are irrelevant to it; only live Indian patents, and pending Indian applications that might become live, matter.
The two searches overlap in method and differ entirely in purpose. Passing one says nothing about the other. An invention can be unpatentable because it is old and still infringe nothing; it can be brilliantly new and infringe a broad earlier claim.
Where to search
InPASS, the Indian Patent Office’s own search, is the only place to find Indian applications and patents comprehensively, including their legal status — filed, published, granted, lapsed, in force. It is essential for freedom-to-operate work and for checking whether a competitor has filed in India.
Patentscope, run by the World Intellectual Property Organization, covers PCT applications and the national collections of many countries, and lets you search a whole family from one entry.
Espacenet, from the European Patent Office, is the broadest free collection of patent documents worldwide, with machine translation and good classification tools.
Google Patents is the most forgiving for a first pass, with full-text search across most major offices and a useful “prior art” finder on each document.
For non-patent literature — which is where a great deal of the prior art in fast-moving fields sits — Google Scholar, subject databases, and the applicant’s own knowledge of the field.
How to search
Start with classification, not words. Every patent document is coded under the International Patent Classification and, at most offices, the finer Cooperative Patent Classification. Find the codes for the invention’s field — Espacenet and Google Patents both suggest them from a description — and search within them. Keyword searching alone misses documents that describe the same thing in different words, which in patents is the normal case.
Then add keywords, in several forms: the technical term, the everyday term, the term a competitor in another country would use. Search the claims and abstract as well as the full text.
Follow citations. Every relevant document you find cites earlier ones and is cited by later ones. Working outward from one good hit is the fastest way to find the rest.
Read the claims, not the title. For freedom to operate especially, what a patent covers is what its claims say, and titles and abstracts are routinely broader or narrower than the claims.
The blind spot
Applications are not published until eighteen months after their priority date. Anything filed in the last eighteen months is invisible to every search. A clean search today can be contradicted by an application that was filed last year and appears next year — and that application, if it is earlier than yours, has the earlier date.
This is the strongest argument for filing promptly once a search comes back clean: the search is a snapshot of the published record, and the record lags the world by a year and a half.
What a search cannot tell you
It cannot tell you whether an examiner will agree with your reading of a document. It cannot find prior use that was never written down. It cannot find the unpublished application. And it cannot tell you, from the existence of a patent, whether that patent is valid — a granted patent can be revoked, and freedom-to-operate opinions often turn on whether an earlier patent would survive a challenge.
A search narrows uncertainty. It does not remove it, and anyone who says otherwise is selling a search.
When to get help
A self-conducted search is a good first filter and will catch the obvious. A professional search earns its cost where the field is crowded, where the stakes of infringing are high — a product launch, a manufacturing investment — or where the invention is in a field with its own vocabulary and classification quirks, such as pharmaceuticals, biotechnology and telecommunications. In those cases the search is followed by an opinion, and the opinion is what the decision rests on.
Frequently asked questions
Does the Indian Patent Office search my invention before I file? No. The examiner searches after a request for examination is filed, as part of examination. Any search before filing is the applicant’s to do.
What is the difference between a patentability search and a freedom-to-operate search? A patentability search asks whether the invention is new and inventive, against everything published anywhere. A freedom-to-operate search asks whether making or selling the product in India would infringe a patent currently in force here. Passing one says nothing about the other.
Where can I search Indian patents for free? InPASS, the Indian Patent Office’s public search, covers Indian applications and patents with their legal status. Patentscope, Espacenet and Google Patents cover Indian documents alongside the rest of the world.
Why did my search miss a competitor’s application? Applications are published eighteen months after their priority date. Anything filed in the last eighteen months does not appear in any search, and may carry an earlier date than your own filing.
Should I search by keyword or classification? Classification first. Patent documents describing the same thing routinely use different words, and classification codes group them regardless. Add keywords in several forms once the classification search has found the neighbourhood.
Can a search tell me whether a patent is valid? No. It can find the patent and show its claims and status. Whether those claims would survive a challenge is a separate question of opinion, and freedom-to-operate advice often turns on it.
Useful official resources
See our related notes on what can and cannot be patented and reading an application’s status on InPASS.
Need a search followed by an opinion you can act on — before a filing, or before a launch? Talk to us.