How to Avoid Infringing Other Patents

August 07, 2026

Siert Bruins

This guide explains practical strategies for avoiding patent infringement, including patent searches, Freedom to Operate (FTO) analyses, patent monitoring, and design-around strategies. To understand the legal principles behind patent infringement itself, first read our guide on What is Patent Infringement?

Why Can a Granted Patent Still Infringe Another Patent?

This is one of the most common questions inventors ask after receiving a patent. If the Patent Office has carefully examined the invention and decided to grant a patent, how can the product still infringe someone else's patent?

The answer is surprisingly simple: a patent answers one legal question, while patent infringement answers another. When examining a patent application, the patent examiner determines whether your invention is sufficiently new and inventive compared with the existing prior art. The examiner does not determine whether your final product can be commercialized without using technology protected by patents owned by others.

In other words, a granted patent gives you the right to exclude others from using your invention. It does not automatically give you the freedom to manufacture, use, or sell a product incorporating that invention. Those are two different legal questions.

Imagine that Inventor A owns a patent covering a new type of bicycle frame. Years later, Inventor B develops a revolutionary electric drive system that is sufficiently novel and inventive to receive a patent of its own. Inventor B's patent protects the new motor technology, but commercializing the complete electric bicycle may still require permission to use Inventor A's patented frame. Both patents can therefore be perfectly valid, while neither inventor is automatically free to commercialize the complete product without considering the other's patent rights.

In the abovementioned example this distinction is obvious but becomes more difficult to see and important in complex technologies such as medical devices, biotechnology, electronics, software, and telecommunications, where a single commercial product may incorporate dozens or even hundreds of separately patented inventions.

Why Doesn't the Patent Office Check for Patent Infringement?

Once inventors understand that a granted patent does not automatically provide Freedom to Operate, the next question is almost always the same: Why doesn't the Patent Office check this before granting the patent?

The answer is that this is simply not the role of the patent examiner. During the examination process, the Patent Office evaluates whether the claims of your invention are new, inventive, and sufficiently described. The examiner does not investigate whether a future commercial product may infringe patents owned by other parties.

There are several reasons for this. First, patent applications describe an invention, not necessarily the final product that will eventually be commercialized. A single product may combine dozens or even hundreds of different patented technologies developed by different inventors and companies.

Second, patent rights are constantly changing. New patents are granted every day, existing patents expire, some patents are declared invalid, and many technologies are licensed between companies. Whether a particular product has the Freedom to Operate therefore depends on the moment, the country, the exact product design, and the patent landscape at that time.

For these reasons, determining whether a product infringes another patent is ultimately the responsibility of the company bringing the product to market. This is why many businesses perform a so-called Freedom to Operate (FTO) analysis before investing in product development or launching a new technology.

The Patent Office decides whether your invention deserves a patent. It does not decide whether your product is free to enter the market.

Patentability Is Different from Freedom to Operate

Although the two concepts are closely related, patentability and Freedom to Operate (FTO) answer two completely different questions. Confusing these concepts is one of the most common mistakes made by first-time inventors and entrepreneurs.

Before considering Freedom to Operate and patent infringement risks, it is important to understand how patents are obtained and what a granted patent actually protects. If you are new to patents, start with our guide on How to Get a Patent.

Patentability asks whether your invention is sufficiently new, inventive, and industrially applicable to qualify for patent protection. To answer this question, patent examiners compare your invention with the existing prior art. If your invention meets the legal requirements, a patent may be granted.

Freedom to Operate asks a completely different question: Can I manufacture, use, or sell my product without infringing patents owned by other parties? Answering that question requires looking not only at your own invention, but at the complete product you intend to commercialize and the patents that may cover individual components, manufacturing methods, or technologies used within that product.

In other words, patentability looks backwards by comparing your invention with what already exists. Freedom to Operate looks forward by assessing whether your future commercial product can enter the market without infringing existing patent rights.

This is why obtaining a patent is only one step in a successful innovation strategy. Before investing heavily in product development or entering the market, many companies perform a Freedom to Operate (FTO) analysis to identify potential patent risks at an early stage.

Patentability vs. Freedom to Operate

How Can You Reduce the Risk of Patent Infringement?

Obtaining a patent does not automatically give you the Freedom to Operate. Before investing significant time and money in product development, manufacturing, or commercialization, it is therefore important to assess whether your product may infringe patents owned by other parties.

Although it is impossible to eliminate every risk, there are several practical steps inventors and startups can take to reduce the likelihood of patent infringement. The earlier these questions are addressed, the easier and less expensive it usually is to adapt your technology or business strategy.

Common strategies include:

• Performing a Freedom to Operate (FTO) analysis before commercializing a product.
• Monitoring newly published patents filed by competitors.
• Designing around existing patents by developing alternative technical solutions.
• Negotiating a licence when patented technology is essential.
• Regularly reviewing your patent strategy as your product evolves.

Patent infringement should not be viewed as a purely legal issue. It is also a technical and strategic challenge. Understanding the patent landscape early in the development process often leads to better design decisions, lower commercial risks, and a stronger market position.

Freedom to Operate is therefore not merely a legal exercise. It is an important step in reducing uncertainty and increasing the commercial value of an innovation. It is part of a broader strategy to reduce uncertainty throughout the innovation process. Every technical, commercial, and legal risk you eliminate makes your invention more attractive to customers, partners, and investors. This principle of creating value by systematically reducing risk is explained in more detail in our guide on Risk Reduction in Innovation.

This current page is part of our guide on Patent Enforcement & Infringement Risks, where we explain how patent infringement is assessed, how patent rights are enforced, and how inventors can reduce legal and commercial risks before bringing new products to market.

What Should You Do If You Discover a Blocking Patent?

Discovering a patent that may block your product does not necessarily mean your project has failed. In many cases, inventors and companies have several options to reduce the risk or continue development in a different way. The worst decision is usually to ignore the issue and hope it will disappear.

The most appropriate strategy depends on the technology, the commercial importance of the product, and the scope of the patent claims. In practice, companies often choose one or more of the following approaches:

• Design around the patent. Modify your product so that it no longer falls within the scope of the patented claims.
• Negotiate a licence. If the patented technology is essential, obtaining a licence may be the fastest route to market.
• Challenge the patent. If there are valid reasons to believe the patent should not have been granted, it may be possible to challenge its validity.
• Wait for the patent to expire. Patent protection is temporary. In some situations, delaying commercialization may be a realistic option.
• Collaborate instead of competing. In some industries, cross-licensing agreements and strategic partnerships are more common than litigation.

The earlier a potential blocking patent is identified, the more options remain available. This is why many companies investigate the patent landscape before investing heavily in product development, manufacturing, or market launch.

A blocking patent should not be seen as the end of an innovation project. More often, it is a design constraint that helps determine the most effective technical, legal, or commercial strategy.

Real-World Example: Apple vs. Masimo

Patent infringement risks are not limited to startups or first-time inventors. Even the world's largest technology companies carefully investigate patent landscapes before launching new products. The long-running dispute between Apple and Masimo illustrates how disagreements over patented technology can escalate into years of litigation when companies believe valuable innovations have been used without permission.

Read the full story in our case study The Apple Masimo Patent Battle.

Lessons for Inventors

Many first-time inventors assume that obtaining a patent automatically means they are free to commercialize their invention. In reality, patent protection and Freedom to Operate are two different legal concepts that answer two different questions.

A patent protects your own invention by giving you the exclusive right to prevent others from using it. It does not automatically give you the right to manufacture, use, or sell a product that may incorporate technologies protected by patents owned by others.

Successful innovation therefore requires more than obtaining a patent. It also requires understanding the existing patent landscape, identifying potential infringement risks at an early stage, and making informed technical and commercial decisions throughout product development.

In other words, obtaining a patent is not the finish line. It is often just the beginning of a broader innovation strategy.

This article is part of our broader Patents Knowledge Hub, where you will find an overview of the most important patent concepts, filing strategies, real-world case studies and practical guidance for inventors and entrepreneurs.

Related Questions

• What Is Patent Infringement?
  Learn when a product legally infringes an existing patent and how patent infringement is assessed.
• What Is Prior Art?
  Understand how patent examiners determine whether an invention is new and inventive.