Patent eligibility screener

General guidance only. Patent eligibility and patentability require a professional prior art search and legal analysis specific to your invention. This tool identifies common issues for discussion with a patent attorney - it doesn't replace a formal patentability opinion. See our full disclaimer.

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A patent attorney conducts a formal prior art search, evaluates novelty and non-obviousness, and can advise on provisional vs. non-provisional filing strategy for your specific invention. Free initial consultation in most areas.

What are the basic requirements for patentability?

An invention must be patent-eligible subject matter, novel (not already known or disclosed publicly), non-obvious (not simply an obvious modification of existing technology to someone skilled in the field), and useful. Failing any 1 of these requirements can prevent a patent from being granted, or invalidate one after the fact.

Subject matter eligibility is a threshold question, separate from novelty and non-obviousness - some inventions are excluded from patent protection entirely regardless of how novel or clever they are. Laws of nature, natural phenomena, and abstract ideas (including many types of algorithms, mathematical formulas, and business methods without a sufficiently concrete technical implementation) fall into this excluded category.

If you're deciding between patent and trade secret protection for a business innovation, weigh both options - trade secret protection may be a better fit for information that's hard to reverse-engineer once your product ships. See the trade secret protection checklist to evaluate that alternative path.

What is the difference between a provisional and non-provisional patent application?

A provisional application is a lower-cost, less formal filing that establishes an early filing date and allows you to use "patent pending" status, but never itself becomes an issued patent - you must file a corresponding non-provisional application within 12 months to preserve the priority date. It doesn't require formal patent claims, making it faster and cheaper to prepare.

A non-provisional application is the formal application that's actually examined by the patent office and can result in an issued patent. Many inventors use a provisional filing to secure an early priority date while continuing to develop and refine the invention, then file the more expensive non-provisional application once the invention is more fully developed - though this strategy requires careful attention to the 12-month deadline.

Why does public disclosure before filing matter?

In the US, you generally have a 1-year grace period to file after your own public disclosure of the invention, but many other countries offer no such grace period - meaning a public disclosure (including certain publications, sales, or public demonstrations) can permanently bar patent protection in those countries even if a US application is still possible. If you're considering international patent protection, filing before any public disclosure is the safest approach.

If you need to discuss your invention with potential investors, manufacturers, or partners before filing, use the NDA generator to protect the disclosure and avoid inadvertently starting the clock on public disclosure deadlines.

Frequently asked questions

Sometimes, but this is one of the most legally complex areas of patent eligibility following several significant Supreme Court decisions. Software and business methods can be patented if they're tied to a specific technical improvement (such as improving computer functionality itself, or providing a technical solution to a technical problem) rather than simply implementing an abstract idea using generic computer components. A pure business method or algorithm without a sufficiently concrete technical application is likely to face a Section 101 subject matter eligibility rejection. This is a highly fact-specific area where patent attorney guidance is particularly valuable before investing in an application.

Costs vary significantly based on invention complexity, but a full patent process (provisional filing, non-provisional application, attorney fees for drafting and prosecution, and USPTO fees) commonly ranges from several thousand dollars for simpler inventions to tens of thousands of dollars for complex technology with extensive claims and potential office action responses. Maintenance fees are also required periodically after grant (at 3.5, 7.5, and 11.5 years) to keep the patent in force, and international filing in additional countries multiplies the cost substantially. Budget realistically for the full process, not just the initial filing, when deciding whether to pursue patent protection.

Utility patents (the most common type, covering new and useful processes, machines, or compositions of matter) generally last 20 years from the filing date of the earliest non-provisional application, subject to timely payment of maintenance fees. Design patents (covering ornamental designs rather than functional inventions) last 15 years from grant. After expiration, the invention enters the public domain and anyone can use it freely - this fixed term is a key tradeoff compared to trade secret protection, which can theoretically last indefinitely but offers no protection against independent discovery.

Prior art includes any publicly available information (existing patents, published applications, academic papers, products already on the market, and other public disclosures) that could be used to argue your invention isn't novel or is obvious in light of what already exists. A professional prior art search before filing helps assess your realistic chances of obtaining a patent, identifies how to draft claims that distinguish your invention from existing technology, and can save significant cost by revealing early that an invention isn't likely patentable before investing in a full application.

The USPTO allows self-filing (pro se applications), but patent law and claim drafting are highly technical - poorly drafted claims can result in a patent that's either rejected, or granted but so narrow that it provides little real protection against competitors designing around it. Patent attorneys (and patent agents, who are registered to practice before the USPTO but aren't necessarily licensed attorneys) undergo specialized training and must pass a separate patent bar exam beyond standard bar admission, reflecting the technical complexity involved. Given the significant investment of time and money in the patent process, most inventors find professional assistance worthwhile, particularly for commercially significant inventions.