Naturally, patent attorneys often get asked how much drafting a patent application costs.
If it is a first or basic application, my standard answer is it depends on the complexity and time taken. Depending on the subject matter, it usually takes 9 to 12 plus hours to draft a patent specification properly. Then the cost is based on whatever the attorney’s hourly rate is. However, I do have 20 odd years of experience and skill in drafting mechanical patents, so it may take less time comparatively.
Being a partner in a small practice, I was always hesitant to hand anything over to a trainee or ‘biotech’ attorney sitting around in the office. This was not due to self-interest, but because I knew that I was still learning things after 10 years. I came to realize that there was no way a young attorney would know what they do not yet know or are yet to learn.
There is also no way I would take the risk in having it done by someone who the client did not expect to put pen to paper. How the new attorneys are expected to learn these skills from doing a course at university is beyond me. We had to pass board exams in my day, which meant you had to actually know how to draft properly before you could pass the exam. The incentive was to fully understand what you were doing before you sit the drafting exam, otherwise, you have to pay to sit it again the following year.
While cost is always a factor, clients do not know or realize patents are in fact contracts in rem and not in personam. Patent contracts are a proprietary right and not a personal right, so you really only get one chance to do it properly. Just because we are all trained with the same skill set, doesn’t mean we are all gifted with the same aptitude to draft in patent language so to speak.
Patent attorneys are like brain surgeons. It’s a bit like having a brain tumour – you need it done properly the first time.
This is because an invention is in the public domain once the patent application is published or the subject matter is disclosed based on having an official patent application. Non-disclosure agreements or other matters of confidentiality bind only those agreeing to sign them, but not others they may have spoken to.
This is the very reason for patents. Their raison d’etre so to speak. They do not depend on any explicit confidentiality agreement. Their existence simply reserves the monopoly to exploit an invention to the rightful owner designated on the patent.
The problem is that competitors will copy, reverse engineer or springboard a great product and have it built in a cheap labour country. Then they import it back and pretend to the market that it is made in the local factory next door. Patents enable their owners or their lawyers to at least send a cease and desist letter to the alleged infringer and to take action if the letter is ignored. They should in effect be considered tools of the trade themselves.
Unfortunately, we often see now established Australian businesses destroyed overnight citing “cheap imports”. This is often the reason given by proprietors facing a downturn in the present retail economy.
While there may be some truth in this, I would say that the real reason is really a reluctance of business managers to understand and invest in intellectual property. It can be viewed as either a shield to protect a business or a sword to take action against an infringer, which in any case is also an asset of the business.
📲 Feel free to contact Aspides for further information on our Patent costs and services and what areas of your business need to be assessed.
Written By: Jaime Massang B.Sc (Hons) LLB. || Aspides Patent and Trademark Attorneys.