Because the quality of a patent matters critically, who prepares the patent and how the patent is prepared matters critically. For a given invention, either a strong patent or a weak patent may be obtained depending on who prepares the patent and how the patent is prepared.
In many people’s misperception, applying for patent is like what the discoverer of the land in our analogy would do: he presents to the government the piece of land he has discovered, and the government then builds a fence around the piece of land to indicate that this is his property.
This is a highly misleading perception.
In a patent application process, it is the inventor’s patent attorney who builds the fence, not the government. The quality of the service therefore should be a priority consideration when choosing an attorney or a law firm. There are important economic reasons for this. One of them is precisely because, not in spite of, anyone with a license can help you get a patent.
The truth is, it isn’t terribly difficult to apply and get a patent if there is a genuine invention. Many can do it. This is true in a sense similar to that anyone can conduct a negotiation and reach an agreement. The real question is, what kind of deal is he able to get for the party he is representing? If the represented party only cares about a piece of paper that is entitled “agreement” regardless of what has been agreed to, the negotiator would simply reach an agreement in total favor of the other party. Doing so of course would not require any special negotiation skills.
By the same token, if one just discloses what has been invented but claims very little patent right, the government would be happy to issue a patent because it gains much inventive information on behalf of the public without giving the inventor much exclusive right in return. Preparing and procuring such a patent would not require much skill of a patent attorney. But the issued patent would be useless to its owner, unless it is the intention of the patent owner to make the invention public without claiming patent rights (in which case, a Statutory Invention Registration is available to serve just such a purpose.)
In other words, the problem faced by a patent applicant is not that it is difficult to get a patent at all, but that it is easy to get a weak patent on a strong invention.
A weak patent creates the illusion of protection but in fact spoils a strong invention, and is thus worth no more than a piece of paper, or worse. An example provided at the end of this article illustrates this point.
As has been noted, the patent application process is a bargaining process between the patent applicant and the government. The government has a system plus some smart and tough patent examiners that work for it. It is probably a good idea for the patent applicant to hire a skilled patent attorney to represent him in the bargaining process.
