Intellectual Property Rights- Should I file for provisional patent myself?

Intellectual Property Rights- Should I file for provisional patent myself?

April 5, 2017
Walker Weitzel
IP Economics

Intellectual Property Rights question from the community- Is using a patent agent as effective as LegalZoom and which is more cost effective?

tldr: If the goal is to get a patent, you risk losing property rights while only realizing a nominal savings by using LegalZoom. You will probably need an agent or attorney eventually anyways, so it is best to engage one at the beginning of the process.

What are the requirements to attaining Intellectual Property Rights?


It helps to understand that the technical requirements for filing a provisional patent application are quite limited. It is a disclosure of information that is not examined by the patent office and therefore there are literally no rules as to the content of a provisional application. There are formatting rules. There are several documents that must be filed along with the disclosure. The drawings do not have to be formal, and they are technically not required, but for all intents and purposes, they are required if your invention is to ever culminate in an issued patent and actual intellectual property rights.

However, only the information described in the provisional patent application can be relied upon in drafting your final application. If material is left out of the provisional, it will be lost.

LegalZoom will file an application that meets the technical requirements. They will make sure paperwork is complete. They will adapt a disclosure that you write to filing status. You can even pay extra to have them write a claim for you. Understand that the claim is not intended to be protectable property in some eventually issued patent- the claim is offered because in some other jurisdictions outside of the US, a provisional patent application is required to include at least one claim, and therefore the included claim can serve to make the application complete enough to use as a priority document in the event that you choose to pursue intellectual property rights outside of the US.

LegalZoom will not ensure that the content of your application will result in maximum intellectual property rights. The disclosure is up to you. Your rights will be based on your disclosure. Depending on your ability to draft a complete disclosure, you may fair quite well with LegalZoom. Just understand that patent drafting is an art, and experience can be extremely valuable. There is a huge amount of case law that dictates how patent language is interpreted, and an experienced agent or attorney will be guided by the existing law in drafting.

If the end-game is to get a patent, then having an agent or attorney draft the nonprovisional application is highly advisable. This applies to the disclosure as well as the claims. The point being that you will probably need to engage with a professional at some point anyways. While there is the possibility that you can eliminate some work for them by doing it yourself through LegalZoom and find an associated savings, it is also possible that your initial disclosure will not be of professional quality. You would possibly lose some intellectual property rights that an agent or attorney might have been able to establish claim to if you had employed them for the initial provisional patent draft. More on that point- many agents and attorneys will allow you to draft disclosures yourself and just charge you for review and edits.

Therefore, I believe there is much more value in working with an agent or attorney from the beginning. If you are cost-sensitive, let them know that you would like to do as much of the work yourself as possible. I gear my patent law practice toward individual inventors, most of whom are of moderate means. I will always work with inventors to try to protect their property in ways that fit their budget. It pains me to see people lose rights they were entitled to, so I always encourage people to contact a patent lawyer early. Almost everyone offers a free consultation and it can be hugely helpful to point you in the right direction for protecting your intellectual property rights.

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