Cheap Patents are Costly
It is not uncommon to receive a phone call from an inventor who wishes to write their own patent in order to save money but wishes me to help them in some way. Usually, the inventor asks me to read or edit their patent application and help them file it.
This type of situation is one in which neither the inventor nor attorney can possibly get what is best for either of them. It is a road to disaster.
The inventor wants a patent to protect an invention, ostensibly to use the patent for a commercial purpose: to license or to build a business around a product or service.
The patent agent or attorney wishes to provide a service at a reasonable price. Included in the price for the service is, among other things, liability for problems that may occur in the future. For each action the patent agent or attorney undertakes, they also undertake a risk of being sued for any mistakes or issues that come up after the fact.
This liability is something that the inventor implicitly demands. By asking an attorney to read over a document and declare it good, the inventor assumes that any problems were caught and, if any problems arise, the inventor is covered.
Let’s look as the business proposition from the attorney’s point of view. First, since the inventor wants to draft an entire patent application, there is a presumption that there would be a reduced fee for the attorney. Second, the attorney is asked to take on the full liability for any problems.
Third, the likelihood of a problem increases incredibly in this situation. The problems that may be encountered during drafting are often failing to include enough language to disclose a pertinent feature, inadvertently or improperly using one of the forbidden words of patent drafting, including references to prior art of any form, or any of a host of other issues.
I think in some cases, inventors may have encountered patent attorneys who act as mere scriveners who dutifully write down whatever the inventor says and adds little else. In many cases, the inventors may be intimidated with the prospects of the filing process for the invention and may be afraid that they may forget something simple or make some kind of administrative error. However, the inventor views what the patent attorney did as adding little technical or legal value.
The single biggest roadblock when attempting this type of engagement is that the inventor unwittingly does not disclose the invention. When I draft a patent application, I spend the appropriate amount of time in a structured interview with the inventor to fully ferret out the intricacies and details of the invention, which enables me to draft claims appropriate to the scope of the invention and write a specification that properly supports the invention. Instead of that, the inventor sends a document that is woefully inadequate and wants me to put the proverbial lipstick on the pig to make it ‘legal’, whatever that means.
When I am asked by an inventor to assume complete liability for drafting their patent application, I will happily do that when I get to use my process for which I will take full responsibility. However, when I have to read, edit, and rewrite the inventor’s work, especially when I cannot use my tried and true process, it takes me considerably longer and the product quality is unfailingly poorer, leading to a higher liability. Thus, if I were to take on such a project, I would charge accordingly, and the inventor may be disappointed to find out that the charges may be two or three times the cost of just having me write the application myself.