Is My Idea Patentable? A Quick Self-Check Before You Hire a Lawyer

Below are five questions. Answer them on paper before you spend money on a lawyer, a search or a filing. The questions are quick to work through, and the answers also become the first page of the brief you hand to an attorney.

Question 1: Can you describe what it does in technical terms?

Patent offices grant rights for technical solutions: a product, a process, a material, or an improvement to one. China's Patent Law (Article 2) defines an invention as "a new technical solution proposed for a product, a method, or an improvement thereof." Write two or three sentences that start with the problem and end with the result:

• Problem: what technical bottleneck are you removing? "Make onboarding easier" is a business goal. "Cut the time the sensor needs to settle from 4 s to 1 s" is a technical problem.
• Solution: what do you do differently — which part, which step, in which order?
• Effect: what measurable thing improves?

If you cannot get past the business story, you are not ready to file yet. That is normal, and it is the most common reason software ideas stall; our guide to software patents explains why the mechanism, not the formula or the market story, is what counts.

Question 2: Is it the kind of thing patent law excludes?

Every system keeps some categories out. China's Patent Law (Article 25) lists, for example, scientific discoveries, rules and methods for mental activities, and methods of diagnosing or treating diseases. Other countries draw the lines differently: the US excludes abstract ideas, laws of nature and natural phenomena; the EPC excludes discoveries and business methods "as such". Pure business rules, pricing strategy and plain presentation of information are the usual casualties in all of them.

A quick test: if you remove the commercial wording, is there still a physical or technical step that produces an effect? If yes, keep going. If no, patents are probably the wrong tool, and you can look at trade secrets, copyright or trademarks instead. See What Can Be Patented? for the full list.

Question 3: Is it new — really?

China's Patent Law (Article 22) requires novelty, inventiveness and practical applicability, and defines "prior art" as technology known to the public in China or abroad before the filing date. Most other major systems follow the same absolute-novelty idea, so what the world already published counts, anywhere, in any language.

You cannot answer this from memory. What you can do quickly:

1. Write three to five different ways of naming your solution (an umbrella is also a parasol or a sunshade — the USPTO's own search guide uses this example).
2. Run them through a free database such as Google Patents.
3. Open the top ten results and read what they actually claim.

If you find something very close, you have learned something valuable for free. If you find nothing, that proves very little; a quick search is a smoke test. See our step-by-step guide to checking whether your idea is already patented and why a good search starts from the invention point, not the keywords.

Question 4: Would the difference be obvious to an expert?

Novelty asks "has this exact thing been done?" Inventiveness (non-obviousness) asks "would a skilled person find this a natural next step?" China's Patent Law (Article 22) describes the inventive-step test as a "prominent substantive feature and notable progress" over the prior art.

In practice, I ask clients two things: what is genuinely different from what peers make, and would an outsider judge find that difference easy to think of? "Ours is better" is not a difference. "Ours places the sensor here and switches at this condition" is. My article Can My Idea Be Patented? The Two Questions I Ask Every Client goes through this in detail.

Question 5: Has anyone, including you, already made it public?

This is the question that costs inventors the most money, because it is the one with a deadline. Most countries require absolute novelty: your own talk, paper, trade-show demo, crowdfunding page or video can count as prior art against you.

Grace periods are narrow and uneven. The USPTO states that a US application can be filed up to 12 months after the inventor's own public disclosure, but warns that such a disclosure may preclude patenting in foreign countries. China allows six months only in four specified situations under Article 24 of its Patent Law, and each has conditions. Do not assume the rules match from one country to the next.

If you have already shown it to anyone, use the free already-disclosed checker. It applies the statutes' rules to your date and countries and gives a verdict for each. It does not know what you disclosed and does not judge novelty.

Score yourself

Question	Green	Amber	Red
1. Technical description	Problem, solution, effect written down	Solution clear, effect unmeasured	Only a business story
2. Excluded subject matter	Clear technical step	Mixed with business rules	Rules, pricing or information only
3. Newness	Close searching done, nothing close	Not searched yet	Found something very close
4. Non-obviousness	A specific difference you can name	"Better, but I can't say how"	Difference looks routine
5. Disclosure	Nothing public yet	Disclosed, date known	Disclosed, date or details unclear

• Mostly green: worth paying for a professional search and a patent attorney's view.
• Amber on 3 or 4: do the search first; it is the cheapest step with the most information.
• Red on 2: consider other forms of protection before spending anything.
• Red or amber on 5: check deadlines first, because they do not wait.

A quick screening step, and its limits

If you want a structured second opinion on question 1 and 2, Invention Village's Patentability Assessment takes a plain-language description and returns five directions you could file on, each with a proposed title and one of three verdicts: can be drafted as it stands, needs recasting, or cannot be filed. It costs 1 credit per run, and new accounts get 25 free credits.

Be clear about what it is not. The tool states that no prior-art search is run: it says nothing about whether your idea is new, and "can be drafted as it stands" does not mean it will be granted. It answers one question, which is whether the idea can be written up as a patent application at all.

When to bring in an attorney

Bring one in when your answers are mostly green, when you are about to disclose or launch, or when a patent would affect financing. Take your five answers, your search notes and any dates of disclosure. If you are choosing between firms, read How to Choose the Right Patent Attorney or Agent. If you decide a patent is not worth it, When Not to File a Patent lays out the alternatives.

General information only, not legal advice. Using our tools does not create an attorney-client relationship. For advice on your situation, consult a registered patent attorney or agent.