Poor Patent Drawings:
Penny Wise and Pound Foolish
by David Spivak
About five years ago, the USPTO dropped a bombshell on me. It decided to relinquish
its responsibility for the quality assurance of patent drawings. Instead, it placed
the PATENT DRAFTING
burden on those filing the
applications - inventors, patent agents and you, the patent attorneys. No longer
were they going to strictly enforce the stringent patent drawing rules that helped
ensure the quality and clarity of a United States patent. For financial reasons,
the PTO was going to leave patent drafting
up to everyone else.
Considering the PTO and the IRS were probably the only Federal agencies to "turn
a profit", I found this ironic... and devastating. You see, for more than
20 years, I had made the majority of my income from patent
Obviously, I had a lot to lose because of this decision, but ultimately, so
did the applicants and inventors. Inventors (your clients, or your employers
in a corporate environment) are those who the Patent Act was created to help
protect and profit. The Patent Act was one of the seeds of innovation that has
made this country great. Anything that weakens the value of a patent puts innovation
at risk. That's why I would like each of you to ask yourself a rhetorical question:
"Is serving my client's best interest my number one concern?" If the
answer is "yes", then read on.
Seeing the writing on the wall, a small group of competitors and I formed ASPI
- the American Society of Patent Illustrators.
Our first endeavor was
to arrange a meeting with the PTO decision makers. We hoped to discover the
reason for a decision that we wholeheartedly believed would degrade the entire
United States patent process, and to see what we could do to reverse it.
meeting with the "powers-that-be", we shared our fears of what these
lax patent drafting
standards could mean to
the patent process. Issues such as increased litigation (a financial burden
to the taxpayer) to added difficulty in performing a proper search were raised.
They agreed with all our concerns, but it didn't matter. As it was explained
to us, although the PTO made a profit, its funds were taken by the government
and used elsewhere. A strictly monetary decision had been made regarding patent
Estimating there were no more than 2000 patent draftspersons nationwide, we (ASPI)
decided to try and enlist the help of the more than 20,000 active registered United
States patent agents and attorneys. This was a monumental task that was soon abandoned.
ASPI members realized that, even if we were able to convince a sizable percentage
of patent practitioners of the dangers of removing drawing standards, the PTO
would not listen to them any more than it listened to us.
Five years later, the patent drafting
an entirely different landscape. The lowered patent drafting
standards have had an extremely negative impact. More importantly, several of
our fears for the inventors have come to fruition. Many instances of poorly executed
that don't clearly disclose their
inventions have been approved and issued. For many, "good enough" has
become the motto. And "good enough" means bypassing a professional patent
share the opinion, those who allow poor drawings to be submitted without (at
least) being reviewed by a professional patent drafting
firm, are doing a disservice to their clients. Ken Nigon, a partner at Ratner
Prestia, a Pennsylvania IP law firm, states, "It is well known that the
drawings are a part of the specification and they have been relied upon to show
that the inventor was in possession of the invention when the application was
filed. It is not a large leap to understand that a poorer quality patent drawing
is less effective for this purpose than a good quality drawing."
In my 27 years of experience as a professional patent draftsman, my employees
and I have added a lot to the patent process that has greatly benefited our clients.
At the very least, a good patent drafting
firm is an
"extra set of critical eyes". In one circumstance, a satellite deployment
system I was drawing did not work as presented. I made the necessary drawing changes,
notified the attorney, who then modified his specification to match my drawings.
If the drawings were submitted without that modification, it could have been argued
that the inventor was not in possession of an operable invention.
According to Dick Woodbridge, partner in the IP law firm of Synnestvedt, Lechner
& Woodbridge, and a former USPTO patent examiner, "Poorly done patent
reflect poorly on the whole application. If the drawing looks
sloppy the examiner will assume the same low level of care was taken with the
rest of the application and you lower your chances of getting the application
allowed. I say this as a former Patent Office Examiner. I think it is very important
to have a professional looking application and professional drawings are part
of that." Certainly, doing anything that might decrease the chances of
the application being allowed should be considered "not serving your client's
Second Set of Eyes
Over the years there have been countless instances during the patent
process where we have caught major and minor mistakes in original
drawings and sketches submitted to us for finalizing. This is just one of the
"value added benefits of using a patent drafting
professional. Our experience and drafting skills have enabled us to bring attention
to elements which allowed the attorney to increase the scope of claims, and
suggest additional uses and alternatives for inclusion in the application.
today, through the use of computers, original patent
created by inventors are reasonably good. But in light of
the "value added" benefits mentioned above, it would be prudent to
have an experienced patent drafting
firm at least review
the drawings prior to their formal submission. In fact, there are many circumstances
in which quality patent drawings
than the application text. At times, good drawings show correctly what may be
described insufficiently or ambiguously within the application.
Cost as Small Part of the Process
Cost is a major concern for almost all individual inventors, and increasingly
for corporate entities. This is probably the main reason our service is bypassed.
In reality, under most circumstances, the cost of drawings prepared by a professional
draftsperson is an insignificant portion relative to the overall cost of the application.
At Draftinc, we prepare patent drawings
will pass in most countries throughout the world (with the exception of translating
English text to other languages). In reality, we SAVE money for our clients who
file internationally, especially since the PCT and other foreign entities now
have higher patent drawing standards than the US does.
Good Drawings Attract Capital
Well executed patent drawings
play an important role
during the process of seeking angel investors or venture capital, as well as licensing
opportunities. Harris Wolin, partner in the New Jersey IP law firm of Myers Wolin,
writes "Low quality patent drawings
might affect out-licensing opportunities, not only because of the overall presentation
of the patent, but because it projects an air of sloppiness. A patent owner that
cuts corners on patent drawing quality probably cuts corners on other aspects
of patent prosecution, such as, for example, aggressive fighting for the broadest
possible claim coverage. It also reflects poorly on the patent owner overall.
The drawings are the first pages viewed in a patent, and the first chance to make
a good impression." A fellow ASPI member corroborated this opinion when he
reported that one of his clients, a Global Fortune® 100 company, was able
to negotiate a lower licensing fee - as a direct cause of poor patent drawings!
This is clearly a circumstance of "penny wise and pound foolish".
For good reason, billions of dollars are spent every year on the proper design,
advertising and marketing of products. It has been proven that the best possible
initial impression and continued perception of companies and their products
Shirt and Tie or Jeans and T-Shirt?
The selling and marketing of an invention begins with seeking licensees and
investors. Therefore, obtaining quality patent
is essential to putting your best foot forward down the
marketing path. To borrow an analogy Mr. Wolin provided, "It is the difference
between showing up at a job interview wearing a suit or a t-shirt and jeans".
In this comparison, which applicant would you be more likely to hire? Which
do you believe cares more and will do a better job?
Now turn the tables. An inventor is choosing between your IP / patent firm and
another. In most aspects, the two firms are similar. Your firm's patent portfolio
consists of examples of allowed patents which utilize poor quality drawings -
which is the first thing they see when looking at a published patent. Your competitor,
on the other hand, only uses high quality patent drawings
Their presentation of published patents looks great. Which firm do you believe
will have the edge? I think it's obvious... high quality drawings created by a
professional patent drafting
firm are like dressing
for success. Success for your client translates into success for you.