You do not need a lawyer to file your own patent, but you will be held to the same standard as a professional if you decide to do it yourself.
You will need to meet every deadline, respond to every argument, and provide every document. Doing it yourself will require you to make every legal judgment while also handling all the filing, docketing and organizing that law firms hire a team of paralegals to do.
There is a skill in filing and prosecuting patents that only comes from doing it professionally. It will always be better to have an experienced patent lawyer writing your patent and arguing with the patent office. For the budget-conscious or the do-it-yourself enthusiast, there is a way to get the benefit of a lawyer’s experience and still do most of the work yourself.
Before you file your application
A lawyer’s experience is most helpful before you file a patent. Many of the problems encountered during the process can be avoided by writing the best possible application before you submit it to the United States Patent and Trademark Office (USPTO), the government body that reviews and issues patents.
Here is a list of areas where an attorney is most helpful in the drafting phase of the application:
- The attorney will include many alternatives to the patent specifications, describing the patent in as many different ways as possible. This will help the patent examiner—the USPTO official that ultimately issues or rejects your patent—understand how the invention works in different cases.
- The attorney will conduct a thorough prior art search and write specifications in the application that underscore your invention's novel aspects. Prior art refers to all of the patents, inventions, and contributions made in your field. A novel aspect is the part or parts of your invention that make it different than what has come before—a novel aspect must also be so unique that an expert in the field couldn't have reasonably figured it out on their own.
- The attorney will carefully draft the application, so it considers alternative approaches to the invention to help the examiner know that you've covered all the possible details describing how your invention works.
- The attorney will consider how the patent will affect the business needs of the invention's market, and keep your business needs in mind as well.
- The attorney will include an exhaustive list of references to prior art, pointing out anything related to your invention. This shows the examiner that you've done your research, and you know exactly how your invention will impact the market, the public, and the industry as a whole.
If you are filing a patent application, even a provisional application, you can pay a lawyer for a few hours to look it over and provide some notes. If you are writing a utility application, ask for some specific help: get help coming up with alternative embodiments, look over your prior art search, and draft some proper claims.
Even a small amount of help when you draft the application can spare you a lot of trouble during patent prosecution—the phase of the process where you have to defend your claims against the examiner's arguments for why your application isn't acceptable. Getting the patent wrong may make your patent difficult or impossible to enforce after it issues.
After you file
Once you've filed your application, there isn't as much an attorney can do to help you. If you are having difficulty with an examiner, the lawyer may be able to serve as a mediator, to call the examiner and figure out a way to get issues corrected.
If you have difficulty making your argument understood by the examiner, then a lawyer may help make the argument clearer to the examiner. If you are going to use an attorney to help file your patent application, it is best to use their services early.
Why are patents so hard to get?
Even outstanding lawyers prosecuting very novel inventions struggle to get robust claims, and that is a good thing. Patents create enormous value, and inventors should have to work hard to get broad claims.
The patent office represents the public and the public should not trade exclusive rights to an invention unless it is absolutely novel and written very specifically. Patents should not be easy to get.
Your idea is great, right? Your invention is going to sell millions, right? Then your patent will cost competitors a lot of money, enough for them to hire clever lawyers to find a way around it or to challenge your patent’s validity. In an economy that runs on information, patents are more valuable every day.
Lawyer or no, treat your patent application for what it is: a great idea and an asset potentially worth millions of dollars.