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I can write my own patent.

At first sight, drafting a patent is may be easy. Many inventors have tried their hand at drafting their own patent applications. Some have succeeded, often with mixed results. As a patent attorney, I have assisted those for whom patent prosecution did not work out so well.

Some inventors write their own applications. Others recruit cheap freelancers from a plethora of project sites. Often these writers are based in third world countries where the writer is not a native English speaker. The product of these initiatives, for better or worse, is then filed as a patent application, and when the going gets tough at the patent office, these inventors often turn to a patent attorney, like myself, hoping that it is not too late.

There is more to the patent process than meets the eye.

The trickiest part about drafting a patent application is not even the drafting part and has little to do with the merits of the invention that triggered the patent application, the style of writing, or how articulate or inarticulate an application may sound.

Every patent rises and falls based on its enforceability. It is relatively simple to put an application through the patent office towards an allowance. But a patent really earns its keep when it protects the inventor’s grip on monopoly and punishes the infringer in the court of law. The court is truly the place where a patent is subjected to a rigorous and thorough examination. Unfortunately, factors of whether or not a patent is upheld in court are heavily dependent on what happens at the drafting stage.

Common mistake with patent disclosures

One mistake that I have seen repeatedly is the lack of best mode. Under 35 U.S.C. 112, an inventor must disclose the best mode of making and practicing the invention. Deliberate concealment of best mode, if proven in court, can cause the patent to become unenforceable.

However, in business, secrecy is often an instinctive drive of self-preservation. You keep knowledge under wraps, so that your competitor does not begin to replicate your product, your methods and attract the same clientele. This is a natural tendency in business and is diametrically opposed to the best mode requirement under the patent law. It is the likely reason why the best mode requirement was codified in the first place.

What I often hear from inventors is a request to describe the invention sufficiently to explain what it is and how it works, while deliberately omitting critical details that make the invention special, effective, enduring, better or simply into the invention that it is.

Advice to Inventors

An omission of best mode disclosure is a grave mistake. While it’s true that enforcement of a patent is only undermined by an intentional omission, intent is not is not all that difficult to prove. One way this is done is by a showing that the inventor had been practicing the best mode of the invention at the time when the patent application was filed. There are other legal ways of keeping the application secret during pendency stages. Be sure to discuss this option with a qualified patent attorney.