Do You Really Need A Patent Agent?

Written by: Dr. Susan Rancourt

After months or years of beavering away in your garage, you have finally invented something worth patenting! A bit more research and maybe a few calls, and you realize that patent agents aren’t cheap. So, you wonder, are they worth the investment? Or, can you just write the patent yourself – after all, how difficult can it be to explain how to make and use your invention?

To help answer your question, let’s explore how people become patent agents. A patent agent may, or may not, be a lawyer. In Canada, they first have to apprentice for two years and then they write a series of four different examinations, administered over four days. In the past five years, of the people who wrote all four exams at once, about 7% passed. If a person scores over 60% on any one exam they can bank that exam and need (re)write only the remaining exams. Most people will need to write the yearly exams three times before they pass all four, and are entitled to become “registered” patent agents.

So, it’s really hard to become a registered patent agent, but that’s not why you should use one. You should use a patent agent because it is really hard to draft a patent properly. A patent is more than a “technical” document. It is equally a “legal” document. While they are technically savvy, what causes problems for most “do it yourself” patent drafters are the “legal” requirements, which they don’t know about. There is a lot more that goes into a patent application than is evident on its face.

For example, there are words that agents will use, or not use, in a patent application because they can make or break your patent. There are ways to write things that leave options open, rather than close them down. There is information to include that will broaden what your patent protects, rather than narrow it. Your invention is almost certainly broader than the specific “thing” or the “method” that you have created, and that is what we will try to protect. The “claims” of a patent cause us the most angst because they are so important, yet they will likely take up only 2 or 3 pages of a 40 page document.

After the application is filed with the patent office, a patent Examiner will review it – filing the application is just the beginning of the process. The Examiner will likely raise some objections to the patent application, which require a cogent response. Here again, it is very easy to shoot yourself in the foot if you don’t know what you are doing. A few errant words can cost a lot.

Only you can decide how confident you are of your abilities, or of the ability of someone who is not a patent agent. Every patent agent has met that person who has drafted their own application and is facing an Examiner’s objection that they don’t know how to handle. Sometimes we can help, but it can be costly to try to undo mistakes. More often than not, the application has fatal flaws that can’t be remedied. Unlike a rejected passport application, which can be fixed by filing another passport application, a rejected patent application can’t be fixed – there are no “do-overs”. We can’t supplement it to make up what is missing. The saddest consequence of this is that the invention is now in the public domain, leaving the inventor with no patent protection at all.

So, should you use a patent agent?  We would recommend it. And make sure they are registered!