Patent Application Drafting

Patent Application Drafting

Patent drafting is the process of preparing the patent description and claims as part of how to patent an invention. It is at the core of every patent application. When the patent is issued or allowed, the draft serves as the specification part of the document.

Why do You Need to Know About Patent Drafting?

Collaboration between an attorney and the inventors is an essential part of the patent drafting process. It is imperative that the attorneys understand the invention in detail, all its claims of usefulness, as well as what distinguishes it from similar existing products or processes. Failure in this area increases the chances of the application being denied by the United States Patent and Trademark Office (USPTO).

According to the USPTO, in one nine-year period, fewer than 60 percent of U.S. patent applications were recommended for issuance. Of those that were issued, only about 20 percent were ever commercialized. This statistic emphasizes the importance of having an experienced patent attorney with whom you have good regular communication.

Did you know

Various Parts of a Patent Draft?

As outlined in 37 CFR 1.77, the non-provisional patent draft includes the following thirteen sections:

The title of your invention

A cross-referenced list of any related patent applications

A statement about any federally sponsored R&D —if applicable

The names of all parties if there is a joint research agreement

References to a "sequential listing," any tables or computer program listings, as well as any appendix submitted to a CD or storage device and the incorporation-by-reference list

Background information on the invention

A brief summary of invention

A short description of the drawings

A detailed description of invention

The claim or claims

An abstract of the disclosure

Sequence Listing, if not supplied on a CD or storage device

An oath or declaration

Patent Drafting: Clear Writing is The Key

Some people struggle to write the simple and concise verbiage needed for patent drafting. The summary paragraph for a patent should encapsulate the entire invention. This kind of explicit writing zeroes in and gets to the point without any wordy elaboration. It requires removing all passive voice and finding the right phrases that express the idea while organizing the text in a way that states the information definitively.

When an application is difficult to read or understand, it hurts you, the applicant, in many ways. First, the more complicated the document is to read, the less likely it is that you will read the application thoroughly, and so you may miss errors and omissions. Too often the applicant gives up halfway through the document and skips ahead to the signature page. The result is an application that may or may not include what you intended.

Secondly, the patent clerk or examiner may not read the application. The examiner usually knows the claim extremely thoroughly. However, because this person only has a limited amount of time, the more time they spend trying to find or understand the claim language, the less time spent doing the actual patent searching. This results in a denial or possibly an allowance that is less thorough.

If the patent is ever litigated, a confusing draft can frustrate and annoy judges, juries, and other parties. A poorly written patent may also leave open doors for litigants on either side to interpret the language in an unintended way. This is costly for all the parties.

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