Republished from The Michelson Institute for Intellectual Property.
The cost of hiring a patent attorney can be prohibitive to many individual inventors, students, and startups. While the patent application process can be lengthy and complex, it is possible to apply for a patent without an attorney.
There are many advantages and disadvantages to consider if you decide to apply for a patent without an attorney.
- You may save thousands of dollars in legal fees if you file your application without an attorney.
- In addition, you may qualify for free or low-cost resources to assist with the patent application process.
- You will need to conduct significant research, including prior art searches, before filing.
- It will likely take hundreds of hours of your own time to file a patent application without legal help.
- You will need to stay on top of and meet the many requirements and deadlines of the application process.
- Furthermore, you will need excellent writing skills to draft a strong application.
In summary, you may apply for a patent without an attorney, but it will take significant time and effort. Let’s start by looking at the reasons you might decide not to work with an attorney.
Why You Might Apply for a Patent Without an Attorney
Most patent attorneys charge a minimum fee ranging from $5,000-$10,000 to prosecute a patent application. While you may have heard the term, “prosecute” in other contexts, when it comes to patents, prosecution is merely the process of guiding a patent application through the U.S. Patent and Trademark Office (USPTO). Of course, these are just minimal costs that can vary based on the nature of the invention, the possibility of challenges, and other factors which influence the time spent to prosecute a patent. For many new inventors, students, and individuals without corporate or institutional funding, the cost of legal representation can be prohibitive.
Fortunately, there’s no rule that you must involve a patent attorney in the application process. If you have the time to personally commit to the process and willingness to learn the USPTO requirements, you can file an application on your own. This is known as being a “pro se” applicant. You can also work with non-attorney professionals, like certified patent agents, who can assist with the application process but can’t provide legal advice or representation.
When deciding whether or not to work with a patent lawyer, consider the following:
- Whether you will have the time to conduct your own research and follow through with the application process.
- The complexity of your invention. The more complicated and advanced your invention and its technology are, the more likely you will need an attorney.
- What is the likelihood others will challenge your patent? If it’s similar to other inventions or in a competitive field, you may need an attorney to draft a patent that will stand up to legal challenges.
What are the Chances of Getting a Patent Without an Attorney?
According to the USPTO, only 4.22% of patents granted in 2019 were owned by individuals. Moreover, officials awarded the vast majority of patents, over 93%, to U.S. and foreign corporations. While the data does not reveal how many individuals were represented, it may appear that the odds are stacked against non-corporate applicants.
A 2012 study by Kate S. Gaudry, The Lone Inventor: Low Success Rate and Common Errors Associated with Pro-Se Patent Applications, illuminates some of the possible reasons behind this discrepancy. Specifically, the study found that more than twice as many pro se applications were abandoned than those filed by a representative. This is often because pro se applicants end the examination process early and fail to take advantage of interviews that may resolve issues with the application. Pro se applicants also receive notices of deficiency at roughly twice the rate of represented applicants. The USPTO sends notices when an application fails to meet technical requirements. This likely means pro se applicants are not taking the time to fully read or understand patent application requirements.
While these statistics may seem daunting, they can be overcome. Let’s take a brief look at what it takes to get a strong patent with or without an attorney.
Can You Get a Strong Patent Without an Attorney?
Strong patents present well-written claims, display usefulness, distinguish a new invention from prior art, and anticipate legal challenges. Having an attorney helps, but you can achieve many of the elements of a strong patent without one.
Solid claims are what really strengthen a patent. This is often the most important task for an attorney, as claims describe your invention in a way that will be used to determine if someone is infringing your patent. According to Gaudry’s study, pro se applicants’ claims are often narrower in scope and fewer in number. When drafting claims, you can ask the USPTO to write claims for you. You may also write your own claims and have a patent attorney or agent review them before you submit the application. This is one cost-saving strategy that could potentially get you both strong claims and minimal fees.
Non-attorney professionals, like patent agents and patent librarians, may also be able to assist with prior art searches.
A patent-strengthening element that might be complicated to perform on your own is predicting legal challenges. This is an area where patent agents can’t provide much information, as that would be considered legal advice. To save money, you might try to identify vulnerabilities on your own, then consult with an experienced patent attorney to see if you’ve left yourself exposed to risks. However, the amount of risk will revolve around the nature of your invention. What type of invention is it? Is it an innovative concept in a highly competitive field? Are there similar inventions on the market? A thorough patent search can help you identify other patent holders who might challenge you.
What Free or Low-Cost Resources are Available?
The good news is that you can perform many patent-strengthening tasks with free or low-cost resources. Patent attorneys aren’t your only choice for professional help. Certified patent agents can help with the application process and typically charge much less than patent attorneys. There are also several free resources provided by the USPTO and related organizations:
- The USPTO Pro Se Assistance Program – The Pro Se Assistance Program offers training and free resources to assist applicants at all stages of the patent application process. You can request one-on-one assistance via video conference or telephone.
- Patent Pro Bono Program – The USPTO’s Pro Bono Program matches eligible inventors with volunteer patent practitioners. In general inventors with an income less than 300% of the federal poverty level, with a provisional application already on file or ability to prove completion of the certificate training course, qualify for the pro bono program.
- Law School Clinics – The USPTO Law School Clinic Certification Program allows law students to assist applicants under the supervision of an approved supervising attorney. A list of participating law schools can be found here.
- Patent & Trademark Resource Centers – PTRC librarians can help you conduct searches, explain the patent process and fee schedules, and help you track current research. Most PTRCs also offer intellectual property classes to help you learn more about the patent process.
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Disclaimer: Nothing in this article shall be construed as legal advice.
The Michelson Institute for Intellectual Property, an initiative of the Michelson 20MM Foundation, provides access to empowering IP education for budding inventors and entrepreneurs. Michelson 20MM was founded thanks to the generous support of renowned spinal surgeon Dr. Gary K. Michelson and Alya Michelson. To learn more, visit 20mm.org.