Why Do Patent Attorneys Write Incomprehensible Patents?

Most patents are incomprehensible. This isn’t an accident. It’s the result of bad incentives, bad training, and a business model that rewards complexity over clarity.¹

If you can’t understand your own patent, something went wrong.

“Many inventors boast that they did not understand their patent application because their attorney used ‘legalese’. Some even joke that it was so dense that they did not even know if their invention was in there.”²

The Litigation Mill History

The modern style of incomprehensible patent writing emerged from the patent litigation boom of the 1990s and 2000s.³

“These types of patents were great fodder for Big Law, as one side of the firm would get paid tens of thousands to write the terrible patents, while the other side would get paid millions to enforce them.”⁴

Large-scale patent enforcers — some legitimate, some not — discovered that vague, confusing patents were useful for litigation. Ambiguity creates arguments. Arguments create billable hours. The vaguer the patent, the harder to definitively say it doesn’t cover a defendant’s product.⁵

An entire generation of patent attorneys was trained in this style. Many still practice it. The patents they produce will plague the system for decades.

The “Legalese” Myth

Many inventors believe patents must be written in “legalese” — that incomprehensibility is a feature of the form, not a bug.⁶

“This practice has spawned the widespread belief that patents should be written in some form of ‘legalese’, and inventors often say that they cannot even figure out if their invention is in the patent application.”⁷

This is wrong.

Good patents are clear. Good patents can be understood by the examiner, the infringer, the judge, and the jury. Clarity takes more effort than confusion, which is exactly why it’s rare.⁸

Why Clarity Is Hard

Writing a clear patent requires actually understanding the invention. The attorney must:⁹

• Absorb the technical details
• Distill the invention to its essence
• Identify what’s actually novel
• Express it in direct, active language
• Anticipate how examiners and infringers will read it

This takes significant effort. It cannot be done when the attorney is rushed, distracted, or doesn’t care enough to do the work.¹⁰

“It takes far more effort to write a clear, clean, direct, and comprehendible patent application than a giant, incomprehensible ‘pile of words’.”¹¹

Obtuse writing is easy. Dump technical jargon, add redundant clauses, obscure the actual claims in walls of text. The attorney can do this without deeply understanding anything. It looks impressive to clients who don’t know better.

Clear writing is hard. It requires thought.

The Big Law Problem

Big Law firms create structural problems for startup patent quality.¹²

“The way the sausage gets made in Big Law is hideous. Big Law needs Big Clients to pay the bills, and consequently Big Clients get all of the attention. A startup CEO may meet with a Big Law partner, but rest assured that the work is being done by an inexperienced first year associate in a windowless back room.”¹³

“The pure economics of the situation is that startups are a waste of Big Law resources, and startups will never get the attention they deserve, no matter how friendly the partner is. There is just no incentive for Big Law to waste their opportunity costs on small startups.”¹⁴

“The matter becomes even worse when Big Law does work at cut rate prices. The pyramid scheme of law firm partnerships only work when they can bill full rate. Cut rate work by Big Law only ensures that the quality is also cut rate.”¹⁵

The Attorney’s Incentives

Patent attorneys are paid per patent, not per unit of clarity. There’s no bonus for writing something understandable. There’s no penalty for confusion.¹⁶

Worse, many clients are impressed by complexity. They think a patent they can’t understand must be sophisticated. The attorney who writes clearly may seem less expert than the one who writes impenetrably.¹⁷

The incentives point toward confusion. Most attorneys follow the incentives.

Why Clarity Matters

Examiners do better work. An examiner who understands the invention searches the right prior art and allows appropriate claims. An examiner confused by the application searches poorly and either rejects valid claims or allows invalid ones.¹⁸

“The costs are also reduced by good drafting. A clearly written, easy to understand patent application is much easier for the examiner to review. The examiners tend to do a much better job when they search, so that they can focus on the point of novelty and get the case allowed.”¹⁹

Infringers settle faster. When you push a clear patent across the table, the infringer reads it and thinks “I see how we infringe.” When you push a confusing patent, they think “I have no idea what this means” and hire attorneys to fight about it.²⁰

Judges and juries get it right. Patents are decided by normal people. If they can’t understand the patent, they can’t apply it correctly. Incomprehensible patents invite bad outcomes.²¹

Inter Partes Review goes better. Badly written patents get hammered in IPR proceedings. Ambiguity creates attack surfaces. Clarity survives scrutiny.²²

Value is higher. Clear patents are easier to license, easier to sell, and worth more in due diligence. Confusion creates risk, and risk is discounted.²³

The Standard You Should Demand

A good patent reads like a technical document written by someone who understood the subject. Topic sentences for each paragraph. Clear, simple sentence structure. Active voice. Direct language.²⁴

“The key to good writing comes from sixth grade book reports: clear topic sentences for every paragraph, clear and simple sentence structure, and direct, active voice whenever possible.”²⁵

If your attorney produces something you can’t understand, send it back. Ask them to explain every sentence. If they can’t explain it clearly, they didn’t understand it, and they shouldn’t be writing your patent.²⁶

The Real Test

Can a normal person read this patent and understand what’s protected?²⁷

Not an expert. Not an attorney. A normal person — like the jury that might someday decide whether it’s infringed.

If the answer is no, the patent has a problem. The problem isn’t you. It’s the writing.²⁸

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Sources

Related

• How do I tell if my patent attorney did a bad job?
• Should I use a big law firm for my startup’s patents?
• What is an investment-grade patent?
• Investing in Patents — Chapter 1 and Section 5-2 discuss patent writing quality