The likelihood of receiving patent rights to your invention is going to vary drastically from inventor to inventor. There are numerous factors that can affect your chance of receiving a patent, including the invention itself, the skills of the patent attorney prosecuting your application, the filing date of your application, and the skills and mindset of the examiner assigned to your application. So, what can you do as the inventor to improve your chances of success?
Delay is the Enemy
Well the invention is the invention and you don’t get to choose the examiner. So, you can’t really adjust those to improve your odds. Of the list above, that leaves you with the filing date and the skills of your patent attorney. As a general note you shouldn’t hesitate. Waiting unnecessarily will delay your filing date and allow other inventors to beat you to the U.S. Patent and Trademark Office (USPTO) – we are a first inventor to file system.
My Own Experience
Take it from me, I let life get in the way and I hesitated for about a year on a personal invention. I ultimately filed an application which was rejected based on a prior art reference that was filled 9 months before my application. It was nearly identical to my invention and I was unable to overcome the rejection. Had I not hesitated, I would have received the patent. So, don’t hesitate!
Patent Attorney Skills
Let’s look at the skills of your patent attorney. Assessing the skills of your patent attorney can be very difficult. Patent attorneys borderline write in foreign language with strange formatting and verbiage. It’s unreasonable to expect a non-patent attorney to assess the skills of a patent attorney. Luckily, over the last 5 years or so, certain companies have started compiling big data on the USPTO and law firms. We can now quantitatively compare firm metrics to the national average and to each other.
When you are wondering about your odds of receiving a patent you want to know your patent attorney’s allowance rate. An allowance rate is the percentage of filed applications that result in an allowance. As long as you pay the final government fee (“issue fee”) your allowed application will result in an issued patent. So, the allowance rate is strong metric for determining the likelihood of receiving a patent. According to the USPTO, the national average allowance rate is 67.9% from the 4th quarter of 2016 through the 1st quarter of 2020. In 2019, the average allowance rate increased to 74%. Thus, your chance of receiving a patent using an average law firm is less than 75%. If you want to increase your chances of success, you should hire a firm with a higher allowance rate.
At Smith & Hopen, we are proud to report that our allowance rate was 90.3% from 2015 through the 1st quarter of 2020. Even better, we had a 100% allowance rate in 2019. So how do we do it? That’s a three-part answer. First and foremost, we have been lucky to work with amazing clients with truly innovative inventions, which makes it that much easier for us to secure patents. Second, we treat each patent application as if it is our own invention and immediately become emotionally invested in a successful outcome. And finally, we have developed certain strategies and hacks that have been fine-tuned over the last 20 years to give us the best possible chance of securing patents for our clients.
To answer the original question, your odds of receiving a patent are less than 75% with an average law firm and more than 90% with Smith & Hopen.