Patent Attorneys Do Not Live with Their Mistakes

The Feedback Problem in Patent Law.

Patent attorneys typically have zero feedback about the quality of their work product. This is an inherent weakness of the whole patent system. The attorneys do not have to live with their mistakes, because patent litigation and patent transactions happen long after their work product has ended.

The Long Delay in Feedback

A patent attorney will work on a patent, but the patent might not be litigated, licensed, or sold for 5, 10, or even 15 years. It is only then will someone critically evaluate the patent attorney’s every word.

Only then will we know if that patent attorney did a good job – and only then will we know what they should have done differently.

Continuing Education Does Not Fix the Problem.

All patent attorneys are required to take Continuing Legal Education courses. Ideally, these courses will review the relevant changes to patent law and go over best practices. However, a patent attorney might fulfil their course requirements by taking courses in real estate, insurance, or something completely unrelated. This practice does little to improve their skills in patent law specifically.

Outdated Practices Persist

As a patent practitioner who reviews countless patents, I can read a patent specification and tell when they started practicing and how they were trained. The style of writing, the techniques for explaining things, the way a patent is crafted all reflect what was in vogue when the practitioner began their career. Once trained, that attorney will do things the same way their entire career.

One of my little games is to try to guess the patent attorney’s registration number purely from reading their work product. (The registration number correlates to when they passed the patent bar exam.)

For example, practitioners who still use line numbers on their patent application probably were trained before 2000, as the USPTO switched to paragraph numbering soon thereafter. Staggeringly, some practitioners still use individual line numbering in the claims, which is painful to implement and was discontinued during the Clinton Administration. Seems that nobody told them that the new century started.

The Slow Learning Curve

Good patent prosecution techniques come from learning from your own mistakes, but also from learning from other people’s mistakes.

As a young practitioner, I met someone who told me that you need to write 100 patent applications before you knew what you were doing. At the time, I had written about 70 applications, but I thought I knew what I was doing.

With that thought continually in my head, by the time I hit 100 applications, I began to realize some of the dumb mistakes I had been making. To my horror, I realized that the guy was right. I had 100 applications in the queue all with the same problems, and it will take years for them to get through the system.

By the time I had hit 500 applications, I was still being humbled by things I needed to learn. For example, I would get a rejection by an examiner, and I wish I had included a paragraph that said something in a better way to convince them. But that improvement in my technique would only be applied to the next application, not the 500 applications I already did.

Someone who has no law firm training is stuck with making their own mistakes, but the feedback loop might take 5-10 years. It can take that long before they get into examination and finally realize the problem. Now they have 5 years’ worth of patents in the pipeline with the same mistake. This is not an efficient feedback loop, and that attorney slogs out their career with poor workmanship.

A Brilliant Approach to Improvement

One of my friends took a brilliant approach to this. He was pretty green when he hired on as inhouse patent counsel. As part of his hiring package, he negotiated a budget to hire patent litigators to review his patent applications. He wanted immediate feedback from people who would later have to enforce/defend the patents.

By getting feedback from experts on the “other side” of the patent equation, my friend quickly became a dominant leader in the best way to do patent prosecution.

The Rarity of Proactive Improvement

The sad part is that very few practitioners develop this type of skillset. There are a few, but they are hard to find (and they never advertise). This leaves the industry with a glut of attorneys potentially using outdated or ineffective techniques, ultimately affecting the quality of patents being issued.

In conclusion, the patent system’s inherent delay in feedback creates a significant challenge for attorneys to improve their skills. While some innovative individuals find ways to overcome this, the industry as a whole could benefit from more immediate and relevant feedback mechanisms. Until then, patent attorneys will continue to work in a vacuum, potentially repeating mistakes for years before realizing the impact of their work.