Drafting Your Own Patent?

Recently, one of my clients told me that they had a totally brilliant idea for a mobile cafe. It would be fantastical and incorporate all sorts of technological wizardry. Parts would move, and eyes would be dazzled. A bystander looking at their invention in action would think instantly of the movie “Transformers” where cars and jetplanes transform into humanoid robots, who then go on shooting rampages. (Minus, perhaps, the shooting scenes.)

My client understood that it is a new invention, and a patent would protect their interests. Without a patent, anyone can disassemble a new invention and start manufacturing cheap copies or knock-offs. Worse yet, when the cheap imitations are not exact copies of the invention, but appear to be different, in a different form, the intellectual rights of the inventor may be infringed without him realising it.

Thus, getting a patent done would seem to be good sense. My client thought of that, too, and so he took a trip to the patent office. Seeing a few friendly looking officers there, he took a seat and asked how to about drafting his own patent. One of the officers tending to him kindly gave him a sample of a patent and told him to try and follow the format.

Unfortunately, it was at this point that my client realised that he needed help. The words used were technical — they have to be, as legal language has to be exact in its description. The formatting rules seemed strict — and again, they have to be, as patent examiners examine hundreds of patent applications. The formatting requirements are enforces so that the content is more easily grasped by the poor patent examiners. But perhaps the part which helped my client understand that he needed help was the technicality involved in describing the patent.

Photo from Wikipedia. “Drafter at work” by bls.gov – Drafters Occupational Outlook Handbook, 2008-09 Edition. Licensed under Public Domain via Wikimedia Commons – http://commons.wikimedia.org/wiki/File:Drafter_at_work.jpg#mediaviewer/File:Drafter_at_work.jpg

A patent, if drafted according to the guidelines, would have a start, a middle, and an end. However, some poor patent drafters make it a start, a muddle, and an end. The start begins with an abstract of the invention — what is it? Then comes the description of the prior art, which is interspersed with descriptions of the invention. Then comes the drawings, and with it the description of the embodiment of the invention. Finally, there is the list of claims that outlines the territory that the inventor is claiming. “This is what is mine,” says the inventor in his claims, “the extent of the breadth, width and depth of my invention.”

Sometimes, inventions can get technical, especially when they involve some scientific knowledge. The patent agent who is not technically skilled in the art can still draft the patent, but only with the assistance of the inventor. Things that involve chemistry, geology, physics, and the like, are likely to be beyond the scope of the typical patent agent (or perhaps, to be more correct, patent attorney — as I refer now to lawyers). The patent agent who is technically skilled in the area of the invention is able to grasp the invention quickly and get to drafting it. The patent agent who is not skilled in the area of the invention requires lots of reading, lots of conferring with the client, and lots of time.

Coming to this latter scenario, perhaps a patent agent who is not so technically skilled can still draft the patent, but only with the committed involvement of the inventor. The inventor who says, “I did this, I did that, I plugged this in, and voila!” — that guy will need to calm down and sit down with the patent agent. The inventor who is willing to sit down and explain what the invention is, “This is new because of this-and-this” — that guy is likely to be a great help to his patent agent.

At the end of the day, engaging a patent agent will help the inventor in some ways. The patent agent knows the formatting requirements. The patent agent can help the inventor in conducting the search for prior art — those things which have already been invented in the past. The patent agent can help prepare the various portions of the patent, and draft them like they ought to be drafted. But the bits about the invention — what it is, how is it new, and what makes it work — all these have to be gleaned from the inventor. After all, it is the inventor who gives birth to the invention, and the patent agent is the midwife that helps bring the invention into the world.

However, I’m not saying that an inventor must absolutely get a patent agent to draft the patent for him. An inventor is better acquainted with the invention than the patent agent. He knows it inside and out. He could draft it up, a rough draft, and bring that draft to a patent agent to look at, and improve. “Here is what I invented, now help me get it right so that I can register it.” That might save the patent agent some time, because the patent agent would be able to focus on the nitty gritty bits of it — and see the big picture as the inventor sees it.