Why You Must Insist on Quality Throughout the Patent Process…
And How to Ensure You Receive It
Let’s say that you’ve just advanced the human endeavor by creating the single greatest invention since https://patents.google.com/patent/US1867377A/en?oq=+1%2c867%2c377 ! You know that patent law gives you only one shot to adequately protect your invention, so you are willing to pay about $10,000, depending upon your invention’s technical complexity, to have an experienced, expert patent prosecutor draft a carefully considered patent application that describes your invention, clearly distinguishes it from the prior art, fits well into your organization’s patent-filing strategy, and is generally of sufficient quality to proudly stand up in any licensing negotiation or litigation: in short, a patent application that translates the ethereal poetry of innovative engineering into the earthy legal prose required by the patent law!
Got that? Okay, now how much will you pay to have drafted a patent application for the same invention, but instead of the above described application, this is now an application that misses the point of the invention entirely, that never goes beyond the bounds of the prior art, that repeatedly lapses into technical or grammatical nonsense, that serves no useful purpose whatsoever for your organization, and that is generally of such poor quality as to make even a brain-addled wombat weep in frustration when read in the context of a licensing negotiation or litigation?
If you guessed anything other than $10,000 for this latter scenario, then you have a nasty surprise in store. And, oh yes, to that cost must be added the substantially greater opportunity cost you “pay” because you’ve given up the chance of ever securing adequate protection for your invention.
But how can this be, you ask? Why would I pay as much for nothing as I would pay for my heart’s desire? The answer is, in short, because no one associated with drafting this gem knows or cares enough to forcefully review the work.
Oh woe, that is harsh! What happened here?
Ask for a Second (Human) Opinion
Maybe you’re not a patent practitioner and thus not really qualified to critique a patent application which is, after all, a legal (rather than an engineering) document. That’s perfectly understandable, and that’s why you’ve been assured that your patent application was either drafted by an experienced attorney, or, if the drafter was inexperienced, then your application was reviewed for quality by an experienced practitioner. I’ve been given such assurances myself, and they could even be true! Maybe they might possibly be true? There is a conceivable universe in which the probability of them being true is not identically zero. Maybe.
Or maybe you’re an experienced patent practitioner (like me! yay!), and you actually drafted your own patent application. Good for you, you’re much closer to the wellsprings of quality patenting, but the truth is that humans are never perfect and are notoriously poor at reviewing their own work. Did you catch the “humans” in that previous sentence? Can we consider non-humans for a minute? An AI tool can consider everything that’s gone before without missing a clue, thus asking AI for a second opinion may be a good option in a routine situation when, say, a doctor wants to amputate a body part to which you’ve become particularly attached. However, AI is not yet comfortable breaking ground in the virgin prairies of true innovation (your author is from Illinois) and thus cannot (yet) work well as the final reviewer for patent applications, each of which is definitionally unique which makes training AI on it extremely difficult.
What to do? How about have another experienced patent practitioner, one who had nothing to do with the original drafting and who has no financial ties to the drafter, spend a bit o’ time reviewing your application before filing (or before each Office-Action response)? This unprejudiced second set of eyes may catch and correct any unpleasantness that you or your paid patent drafter have overlooked. This cannot but improve the quality of the patent you will eventually get, and will, in many circumstances, raise its value in the marketplace of innovation.
If you go this route, be sure to get the reviewer’s mark-up and, preferably but realistically depending upon your own expertise, a reason for each suggested change. Really, do that for every important patent filing. (And if a patent filing is not important, then why are you bothering with it?) Got it? You’re welcome.
Quality Control
But patent quality seems to many to be so subjective that this proposal for a second pair of eyes still sounds harsh, and maybe it even sounds like a scheme for grubbing money off someone else’s work. Acknowledged: It is always easy for any professional to criticize someone else’s work, especially in front of an inexperienced client. But the author of this post loves being, and is honored to be, a patent attorney. I would therefore be loath to make any suggestion that reflects so poorly on my profession, unless the benefits to my clients strongly outweigh the opprobrium this proposal is sure to stir up.
And that is where I am today. I am seeing so much patent-drafting unpleasantness that I feel I must speak out. The duty of every professional in every profession is clear:
But if the watchman see the sword come, and blow not the trumpet, and the people be not warned; if the sword come, and take any person from among them, he is taken away in his iniquity; but his blood will I require at the watchman’s hand.
(Ezekiel 33: 6 KJV)
I’m blowing the trumpet for patent quality. Can you hear it?
By: John Bretscher, Patent Attorney