Explainer · reviewed September 2026
This is the single most expensive misunderstanding in early-stage IP. Both questions involve patents and searching, which is exactly why they get conflated.
Question one
Asks: can I obtain a patent for this?
Compared against: all prior art anywhere in the world, published before your priority date — including expired patents, abandoned applications, papers, and product manuals.
Territory: the art is global, even though the decision is national.
Decided by: patent examiners.
Output: a view on novelty, inventive step, and claim scope.
Question two
Asks: could making, using, or selling this product infringe someone's rights?
Compared against: the claims of in-force patents in the specific countries where you operate. Expired and abandoned rights do not matter here.
Territory: strictly national. A patent in one country says nothing about another.
Decided by: courts, applying national law.
Output: risk mapping, claim-to-feature analysis, and questions for counsel.
Where both are needed: a hardware startup filing its own application while preparing to manufacture needs both — and the two pieces of work are scoped, searched, and reported differently.
No search is exhaustive, most applications publish around eighteen months after filing, legal status data lags, and claims change during prosecution. Both analyses reduce uncertainty; neither removes it.
