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Patent criticality
A granted patent does not mean you are free to sell
I have a patent. Can anyone stop me from selling my own product?
A patent is a right to stop other people. It is not a licence to practise your own invention. Your product can be simultaneously protected by your patent and blocked by somebody else's - and the two questions are answered by completely different searches.
What actually happens
Section 48 gives a patentee the right to prevent others from making, using, offering for sale, selling or importing the patented invention. Nothing in the Act gives the patentee a positive right to do those things themselves.
That is not a drafting oversight. Patents are layered. Your improvement to a component sits inside somebody else's patent on the component, which sits inside a third party's patent on the system. Each of you can stop the others. None of you is automatically free.
Why the two searches are different
A patentability search asks: was this disclosed anywhere in the world before my date? It reads disclosures, in any jurisdiction, of any age, whether or not still in force.
A freedom to operate search asks: is there a right in force, in the country where I plan to sell, whose claims my product falls within? It reads claims, ignores expired and abandoned rights, and is territorial.
A document that destroys your patentability may be completely irrelevant to FTO, because it expired in 2009. A patent that is irrelevant to your patentability - because it published after your priority date - may be exactly the one that blocks your launch.
What to do about it
FTO work is best done before tooling, before supply agreements and before a launch date is announced, because the useful outcomes are design changes, and design changes get expensive fast.
Where a blocking right is found the options are usually: design around it, license it, challenge its validity, buy it, or accept the risk with eyes open and price it. All five are legitimate. Discovering it after launch removes most of them.
Section 48 of the Patents Act 1970 confers a right to exclude. There is no statutory right to work one's own patented invention.
Indian courts have repeatedly noted that grant carries no warranty of validity, and section 13(4) says so expressly - which is a related point: a granted patent guarantees neither validity nor freedom.
Run FTO on the product you are actually going to sell, in the countries you are actually going to sell it in, at a point where you can still change the design.
Treating the patentability search you commissioned two years ago as clearance for launch.
Components and processes you buy in. Supplier indemnities are often narrower than founders assume.
Write down the five countries where you will earn revenue in the next three years. That, not your patent, defines the FTO question.
Sources & further reading
- The Patents Act, 1970 (consolidated to 1 August 2024) — Official IP India text
Related
Freedom to operate
An assessment of whether making or selling your product in a given country would infringe someone else's rights that are in force there. It is a different question f…
My patent was granted, so I can sell my product safely.
A patent is a right to stop others. It says nothing about whether you are free to sell. Somebody else may hold a broader right your product falls inside.
Before launching a product
Your own patent tells you what others may not do. It never tells you what you may do. This checklist is about the second question.
Freedom to operate before you commercialise
Because a patent is a right to exclude others, not a licence to practise your own invention. FTO is the only exercise that answers whether you can sell.
Getting ready to launch?
A patent of your own says nothing about whether you are free to sell. Those are two different questions and they need two different searches.
Educational guidance, not legal advice. This material is published by Ragulika IP for general education and information. It is not legal advice, it does not create a professional-client relationship, and it is not a substitute for advice on your own facts. Patentability, infringement, prosecution strategy and every other IP outcome turn on the specific facts and on the law and Patent Office practice as they stand at the time you act. Please take professional advice before making a decision, and read the underlying provision or judgment before relying on any point stated here.
Last reviewed by Ragulika IP on 2026-08-23. Indian patent law and Patent Office practice change; check the position before you rely on it.