Do-It-Yourself vs. Patent Attorney: How to increase your chances of getting a patent

Should you try to file a patent yourself?

Should you file a utility patent application yourself? Would your utility patent application enjoy a higher success rate if it were filed by a patent attorney? This recent study by Dennis Crouch provides some data to show that using a patent attorney does, in fact, increase your probability of sucess compared to filing a do-it-yourself utility patent application.

Do-It-Yourself (DIY) a wise option?

Keep in mind we’re talking about utility patents as opposed to design patents. Generally, design patent applications are much simpler since there is not much writing involved. You need to make sure the design patent drawings are illustrated properly pursuant to the strict USPTO design drawing rules.

Writing a utility nonprovisional patent application, however, is another story. Not only do the figures and descriptions need to be sufficiently fleshed out, but the claims have to be properly drafted. A good deal of judgment is involved in determining the sweet spot for the scope of the independent claims. Too narrow, and the claims will get allowed without sufficient breadth. On the other hand, broadly worded claims will get rejected, but will also have the opportunity for further amendments to find the right scope.

Experienced practitioners may typically aim for a broader scope, recognizing that claims will get rejected in the vast majority of cases. We wait and see what prior art the examiner can find, and then proceed accordingly.

What are the differences in percentages of approval of patent applications?

As shown below, this helpful chart by PatentlyO.com provides a helpful comparison of percentage success rates between do-it-yourself applicants and professionals:

Source: https://patentlyo.com/patent/2021/04/grant-rate-by-size-and-representation.html

For micro entity applicants, the percentage of success increases from 32% for self-filers to 50% when using a professional. This 18 point bump represents a 56% greater chance of success when filing through a patent attorney.

For small entity applicants, the probability of sucess increases from 38% without representation to 65%. with representation. This 27 point increase represents a 71% greater chance of success over do-it-yourself applicants.

Notice how large entity applicants have no grants without representation. That fact alone would suggest that large entity applicants file patents only with representation.

Would higher legal costs justify higher percentages of success?

The assumption beneath the data is that applicants with representation spent more money than self-filers. The chart above does not show the success rates of Office Action responses or what proportion of each group even bothered to file a response. At a minimum, the grant percentages do show that the majority of do-it-yourself patent applicants fail to overcome the rejections of their applications. Small entities have a slight edge over micro entities, but even a 38% chance of success is still abysmal.

So we now know that applications with representation leads to greater success than those without. OK, but how do you pick representation

How do you pick a better patent attorney?

Of course, the data does not distinguish between practitioners. I wrote an article here on how to choose a patent attorney. When it comes to utility nonprovisional applications, major on the majors.

You want a detailed description with figures that adequately show the unique features of your invention. Your independent claims should strike a reasonable balance between a broader scope and sufficient novelty to get past the prior art. If your team includes a former USPTO examiner, you will gain an advantage in accomplishing more effective examiner interviews that will hopefully lead to an allowance with fewer rejections.

Want to explore whether we’re a good fit for you? Contact US patent attorney Vic Lin at vlin@icaplaw.com or call (949) 223-9623 to see how we can help you get your patents granted.

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Frenda Williams
Frenda Williams
2023-02-21
I have had the pleasure of working with Vic and his team at Innovation Capital Law Group on Trademark creation and contracts. As a solo and non-tech founder, the assistance, guidance and recommendations from Vic and his team have been INVALUABLE. And, with the knowledge that I have a Solid, well versed and caring legal team I can turn to, I have the confidence I need to navigate the intricacies of the tech industry as a solo founder. With that being said, If you’re a startup and you’re looking for a legal team that speaks your language, knows the industry and makes you feel like family…. Innovation Capital Law Group is a Perfect fit for you, your company and your team. Five out of Five Stars… don’t let their brilliance blind you 😁
Shiwei Liu
Shiwei Liu
2023-02-20
Excellent service and quick response. Lots of informative documents on its website.
Chang Chien Michael
Chang Chien Michael
2023-02-20
I have worked with iCap for more than 7 years. I am very glad with his professional knowledge that 7 utility patents were granted by USPTO. Vic and his team are very efficient and knowledgeable. Every time he can transcribe my design idea perfectly in two weeks and file it with no rejection from USPTO. The other service including the granted patent following up is always in time to remind me to take actions. That is why I still stick on iCap as my first priority when I want to file a US patent.
Mats Johansson
Mats Johansson
2023-02-20
We have been happy client for 10+ years. Awesome Patent Law Firm!
Hanson Chang
Hanson Chang
2023-02-16
Glad to write a review for Innovation Capital Law Group. We previously worked with a big law firm (2200 employees) on our patents, and decided to shift over to Innovation Capital. It was a great decision, this team got our patents done faster, more effectively, at a lower cost, and with broader claims. Win all around
Genevieve Springer
Genevieve Springer
2022-09-09
Clear, discernible tools and strategies couched within a business conceived from a genuine interest in doing right by founders.
InPlay Inc
InPlay Inc
2022-06-30
Vic and his team have been providing us with the best patent application experiences we could ever have in our entire career life! Their professionalism and technical knowledge have really saved us a lot of communication effort and time on the applications. Definitely highly recommend if anyone is looking for help with IP protection for their business.
Meg Crowley
Meg Crowley
2022-03-05
After working with Vic and his team at Innovation Capital Law Group, our organization is confident our trademarks were solid and protected. Thank you team.
Andy Dong
Andy Dong
2022-02-28
I have been using Innovation Capital Law Group for a few years and continue to use them. They have provided an excellent services on our legal issues including intellectual properties and patents . They are very responsive, easy to work with and very competent . I highly recommend them.

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