Poor Patent Drawings:
Penny Wise and Pound Foolish

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 quality 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 drafting.

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.

Forming ASPI

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.

During our 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 drafting standards.

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.

Fallout

Five years later, the patent drafting business faces 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 patent drawings 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 drafting firm.

Many 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."

Professionalism Pays

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 drawings 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 best interest".

Second Set of Eyes

Over the years there have been countless instances during the patent drafting 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.

Frequently today, through the use of computers, original patent drawings 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 divulge more 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 that 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 improves sales.

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 drawings 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.