World 4 · Innovation Scout · Lesson 15

Patentability vs freedom to operate

"Can I get a patent?" and "Can I sell this product?" are different questions, answered from different evidence. Holding a patent does not mean you are free to operate.

5 min
Jurisdictions: International / treaty, Australia, Vietnam
Last reviewed: 19 October 2026

Draft — awaiting editorial review

Educational content, not legal advice. Lessons are drafts awaiting editorial review.

You will learn to

Tell patentability apart from freedom to operate (FTO).
Explain why a patent is a right to exclude, not a permission to use.
Know why FTO is assessed per country, per product and per date.

Two questions, two kinds of evidence

Patentability asks: is my invention new, inventive and industrially applicable compared with all the prior art? It looks at every earlier disclosure — including expired patents and old articles. Freedom to operate asks: can I make, sell or import this product in a particular country without infringing someone else's rights that are in force there? It focuses on the claims of patents in force in that country, and on pending applications that may still be granted.

A patent is a right to exclude, not a permit

Under the TRIPS Agreement (Article 28), a patent gives its owner the right to prevent others from making, using, offering for sale, selling or importing the invention without consent. It does not give the owner a right to use the invention regardless of other people's rights. So your patent on an improvement can still fall within someone else's broader, earlier patent. In the other direction, an expired patent is still prior art for patentability, but generally no longer blocks use in that country — although other rights may still apply.

Per country, per product, per date

Patent rights are territorial, so an FTO result for Australia says nothing about Vietnam. The scope of protection is set by each patent's claims, not by its title or abstract. The answer also changes over time: applications are granted, and patents expire or lapse when renewal fees are not paid. A change to the product's design can change the answer too. An FTO opinion is normally prepared by a qualified patent attorney or industrial property representative, for a specific product, in specific countries, on a specific date.

Try a scenario

Kestrel Drones, a fictional Sydney startup, has just been granted an Australian patent on its battery-swap mechanism. The CEO wants to launch in Australia and Vietnam next quarter and says: "We have a patent, so we're free to sell."

What is the best response?

Agree — a granted patent means nobody can object.Separate the questions: the patent answers patentability in Australia; FTO needs its own review for the actual product in both Australia and Vietnam.Check Vietnam only, since Australia is covered by the patent.

Check your understanding

PracticePractice testSee the explanation after each question.

Pass mark: 80% — for this lesson that means every question.

Question 1 of 4A small business in Can Tho is granted a utility solution patent for an improved crop dryer.What does that title tell them about selling the dryer?

That they are free to sell it everywhere.That they can stop others using that solution in Vietnam — not that the dryer avoids everyone else's patents.That no other patent applications exist in the field.

Take away

A patent answers "whom can I stop?". FTO answers "who can stop me?" — country by country.

Apply it to your IP

Nothing runs or is saved on its own. Each option only opens a tool when you choose it.

What this lesson cannot tell you

This lesson is not a freedom-to-operate opinion and cannot tell you whether your product infringes anyone's rights. Only a qualified professional reading the claims against your actual product, country by country, can give that opinion.