New service for 2017!
A 1 DAY SESSION OF ACCELERATED PATENT APPLICATION DRAFTING.
What does that mean?
Consultation through drafting an entire patent application, as can be managed in 2 consecutive days of 12 billable hours apiece. The conceptual TARGET is to crank out a quality non-provisional application in 2 calendar days. The default commitment is two days:
- one day of intensive, but amicable collaboration between prospective applicant for patent and me, and
- one day of exclusive drafting and composition efforts by me, representing 12 work hours.
AGAIN: THIS IS NOT A PROMISE OR WAGER TO COMPLETE AN APPLICATION WITHIN A CHALLENGING PERIOD OF TIME. DO NOT BE CONFUSED. I DO NOT PLAY GAMES WITH CLIENTS’ BEST INTERESTS, AND NOTHING IS MORE IMPORTANT TO THE ATTORNEY-CLIENT RELATIONSHIP THAN RECIPROCAL EFFORT TO CONDUCT A REPRESENTATION IN A PROFESSIONALLY RESPONSIBLE MANNER. YOU ARE EXPECTED TO READ THE FOLLOWING, TO UNDERSTAND WHY THIS SERVICE IS VALUABLE AND WHY I BELIEVE IT FURTHERS THE ATTORNEY-CLIENT RELATIONSHIP.
How is such a thing even possible?
I have found that the biggest obstruction to actually doing an excellent and efficient application is physical separation between attorney and client and piecemeal communication over an extended period of time. Being in the physical presence of one another, and having amicable conversation that progressively builds into one with a more focused purpose can allow for significantly more rapid deduction of what the legal definition of what an invention should be. If that moment is allowed to be considered a significant step completed, enough to give the basis for continued efforts for the next day, perhaps even as little as a few days later, then much of the clarity of the original notion can fade. Starting and stopping the efforts which culminate in an application add dis-engagement and re-engagement delays. I want to try to boil that out.
Broadly speaking, for many types of clients and inventions*, it is frequently the case that when an application comes together quickly, everybody wins. See the following two questions.
Why would someone want a patent application drafted in a day?
With an accelerated time to a useful application, clients can protect their instant understanding of their invention, secure an earlier date of priority, and only incur a cost of roughly the same or perhaps even less. The focusing inherent in pursuing protection this way can also engender in the client or inventor a greater clarity of what they can best expect to protect under their position at that time.
What’s in it for the attorney/ you?
With an accelerated overall period of initiating and concluding an application, an attorney is able to spare his practice the detrimental effect of efforts of each application accumulating inefficient and perhaps redundant units of time that are only once-billable (since nobody should have to pay for the same task that is ultimately delivered only once), and closing the window during which those efforts are executed and when ability to bill for services would arise. In short, it frees up more time to offer more services in any given calendar period, by giving greater certainty that the efforts during that period were valuably spent. It’s about predictability, even if such a day is one of greatly heightened activity.
* before embarking upon effort to orchestrate drafting an application in one day, I will make a threshold initial assessment of the reasonableness of drafting a patent application this way for the invention and client in question. If I do not think it is reasonably likely that such an application can be done to an acceptable execution, then I will communicate this to the client, and advise against pursuing drafting this way.
Why are you “the right man for [this brave new form of the] job?”
I am a people-person. It isn’t just that I prefer to work in a collaborative setting, it is that I seem to have an exponentially-increased productivity per-minute when another person is in the room. On just about anything. Call it being obsequious, call it neurotic, call it anything you want, but I could not ignore that it is true about my work. It has been that way for as long as I can remember.
Also, I have always been my own boss. I have always done my own applications, from client acquisition to allowance, including my own patent figures. I have only once used a third party draftsperson, and ultimately ended up revising so much that I might as well have just done it all myself. I have always done my own searches for patentability opinions, and I have always had complete discretion over how to price services and which services were necessary. If I was under a mandatory policy of a large firm, I wouldn’t have the ability to decide with as much flexibility what was best for the client. Beyond that:
I find almost all fields of invention fascinating and I’ve seen a LOT of fields:
I was a patent examiner in the fields of hunting, fishing, weaponry, animal husbandry, plant husbandry, armor, medical equipment and packaging, and even worked on some soil composition applications.
I have assisted, counseled, worked-for, or otherwise been asked about subject matter relating to:
beach toys, electrical power grid devices, turbines, high strength textiles, materials handling, manufacturing machine monitoring and bulk flow algorithms, holiday displays, storage racks, bathroom fixtures, methods of manipulating cellular membranes, light switches, handicap-accessibility devices, automatic object repositioning, hydraulic systems, high strength flooring, vehicle instrumentation, wireless devices, face and body recognition, vehicle suspensions, drainage sterilization, liquid flow valves and liquid straining, RFID inventory management, paint and other material-depositing brushes, panel drying apparatuses, conveyors, therapeutic aids, bedsheets, hand tools, hydraulic and power tools, methods of performing machine servicing, musical skills teaching aids, groundwater remediation, multiple wireless communication systems redundancy, centralized networked monitoring and reporting systems, emergency alert systems, infant safety devices, vehicle emergency alerts, battery charge capacity preservation, machine-operated vessel filling, programmable beverage brewing, educational software, conversion methods for vehicles into service vehicles, rain coats, smart clothing, electronic displays, decorative packaging, exercise machines, exercise-machine data collection, monitoring and coaching devices, remote tracking and geofencing, slow roasting, energy efficient homes, internet of things devices, contextual advertising devices, surface thawing and snowmelt clearing, footwear, sportswear, memory foams, vehicle storage devices, vehicle-supported and deployed displays , and medical tubing, wound irrigation, satellite topography and crop monitoring, data dashboards, driver education and safety devices, floodwater warning devices, breastfeeding devices, satellite orientation and path-adjustment, pool buoys, handle sterilization, hairdressing, and probably a few others. Oh, and firearms.
Here’s how it works:
We agree upon a mutually-approved work space with a large table, support for several computers, and a whiteboard, in which we can expect to not be interrupted for at least 10 hours, preferably 12. A date to meet at the space is set no sooner than 10 days following initial communications. Some written disclosure is composed by the prospective applicant and is sent to me at least one week before the scheduled day. I will make an assessment as to whether or not the subject matter seems reasonably suited to the drafting. Then we meet up, and I conduct a conversation, drawing out necessary details relevant to deciding my opinion as to the best course of action. Then it is a strategic rush through the day, to see how much we can get done towards all the matters necessary to complete the application. We will order lunch and dinner to be brought.
Now, the reason why I have never offered this before is that I imagined an enormous landscape of matters that need to be laid out, right upfront. Today, I believe that I have covered the bases. All of that is disclosed, below. I highly recommend that you read it:
No more than 3 people and myself are allowed to attend. It is preferred that only one or two people attend, but 3 will be allowed if I believe that they can all work together without conflict. The rationale is one of anticipating a “too many cooks in the kitchen” interaction. Bickering and confusion among the prospective applicants about what an invention is can entirely defeat the purpose of attempting to draft this way. If there is someone whose judgment will be expected to weigh-in upon whether the work would be acceptable to file cannot or will not be present, or if a group of people that can attend has less than substantially all of the discretion as to whether the work can be approved, then it is unlikely that the 1 day drafting will be considered an appropriate service.
So, just to explain one ground implied here as indicative of an entity that would not be appropriate would be one which has 4 shareholders that all are substantively involved in exercising discretion over whether to file. Such an entity cannot be expected to work together so efficiently in this way, and attempting to exclude a necessary person would risk creating an adverse relationship between the individuals that all have a right to exercise discretion over whether to file, without them having a chance to participate.
On the scheduled day, everyone expected to participate must arrive fresh and ready to collaborate for the entire period. If someone who is expected to attend feels, at the beginning of the day, or before the drafting session, that they will have to leave early, then I will insist upon rescheduling to another day when everyone can be present. If, on the day of drafting, someone who must be present appears too tired or hungry or sick or otherwise unlikely to endure what could be a very challenging interaction (subjectively assessed at the time), then I will insist upon rescheduling. Work on alternative projects will not be allowed during the session, and electronic devices will only be allowed for the purposes of collaboration. To protect the work product being created before the prospective applicants’ eyes, documentation of the work product by the prospective client will not be permitted until the end of completion of the application.
If someone appears to have adopted the perspective that this is not the way they wish to proceed, or if I feel that focus upon success during the session has weakened, then I promptly solicit as to whether they wish to continue. No one will be forced to proceed this way with finding protection for their invention. Refusing to be forthright with matters relevant to drafting the application are grounds for ceasing the session.
** If I have to play 20 questions with you just to receive the details necessary for performing drafting, then it may obstruct successful drafting in a single session. It is inherent in the task that everyone be willing to cooperate for any attempt at collaboration to be successful.
**Speaking more broadly, excessively “hiding the ball,” doesn’t allow for an attorney to act in view of all of the relevant circumstances to the client, and may actually risk obstructing the ability to adhere to a professional effort to execute duties, and will not be allowed to persist throughout a session. Your attorney is your advocate and your confidant. A lack of candor with me as to matters relevant to my performance for you is a common ground for terminating representation in all circumstances, not just whether or not to continue a drafting session. (as well as inquiring as to whether the client is obstructing my ability to perform the representation at all).
If a session must be rescheduled more than a token number of times, without adequate excuse, then it may become inappropriate to attempt to perform drafting in this way, at all. Note that the session is expected to last 12 hours, but the drafting session is “24 hours.” This means that the second day will include my refinement and packaging of the application into a final product. This is a presumption of billable efforts taking place over the course of the next day, not that the final product will be filed or delivered by 24 hours later. The 24 hours is a target, representing that literally two solid days of continuous efforts are made, and that the client has the will to make themselves continuously available to make the effort possible. It is NOT a guarantee that the work will be completed by any such hour. 24 hours at $250/hour is still $6000.
One difficult aspect of trying to produce an application adequate for prosecution in such a short period of time are professional looking figures. It is important to note the difference between figures adequate for prosecution and those which are adequate for publication. I believe that hand-drawn figures of adequate quality are manageable with sufficient determination and a steady hand, drawn largely enough on a high-contrast surface, when reduced to scale. This is one reason, though, why it would perhaps be substantively unreasonable to promise literally 24 hours.
The adequacy of language can be ascertained by the author and reader of a passage. However, the adequacy of drawings may be subjectively assessed as being good enough but perhaps being a thing worth 3rd party refinement, at either the attorney’s or client’s discretion. This is particularly true if the client is themselves a talented draftsperson. Figures adequate to correspond to a detailed description section are absolutely considered a part of the drafting effort. However, it should be expected that if either the attorney or the client would prefer a specific draftsperson, that there would be room to add a day or a week, or some reasonably short period of time, in order to include such a person to refine what would be submitted in an application for patent. Doing so would also have little effect upon an ascertainment of whether or not so much drafting and collaborative effort took place between attorney and client during such a short period of time, as well, since a 3rd party or even a client working on his own would not be efforts identifiable as client-attorney intensive interaction, nor exclusive time spent drafting by the attorney. In either case, an application may be filed with adequate drawings, and the patent prosecution process allows for the option of our arranging or producing promptly drafted replacement drawings to be filed a short time later, within the same application.
It is also worth pointing out that this service is about DRAFTING, not filing. Filing is included in the cost of the preparation of the application, but I put little requirement upon a client to review an application before approving it for filing, beyond a good faith effort to prudently review, rather than dawdle and defeating the greatest advantage of having worked so intensively together.
Because of the great risk of making an entire day available, exclusive to many other demands of life, with success being essential to the ability of a singular large-effort flat-fee billable service to be achieved, some precautionary protections are required. The service to be performed in a one-day drafting session is a non-provisional application. This means that the application intended to be drafted is an application sufficient to begin patent prosecution.
A provisional application is an application only insofar as it serves as a starting point for the purpose of supporting a later non-provisional application. Provisional applications are generally less challenging to write and have fewer consequences than a non-provisional application, and have more room to provide a more open-ended disclosure that can support a likely-significantly-heightened need to be better-integrated nonprovisional application. As such, a provisional application is not the service which is best appropriate for a 1-day drafting session whose purpose is to find focus and come to sufficient clarity to enable drafting a complete nonprovisional application.
It is possible that a provisional application might result from a 1-day drafting session, but it will likely be considered an effort that was in excess of what should have been necessary, and the time of collaboration will likely be the more reasonable method of assessing the value of the session. As a standard starting point, my present fee schedule states that the cost of a non-provisional application is $6,000. I would typically consider $6,000 to be on the high side for a single-day’s work, except that in this case, the end product would likely be the equal or better than the piecemeal effort that might take weeks or months. In recognition that it still is a large amount per unit time, significant discount will be considered, but given the long run-up and likely squeezing-out of other matters typical to maintaining a boutique patent practice, as well as this arrangement creating limitations on the ability to simultaneously juggle the efforts of multiple clients, discounts of very large percentage are unlikely.
It is possible that the end result of an attempt at a 1-day drafting session could be deemed acceptable for a provisional application, rather than a non-provisional. My present standard fee for a provisional application ranges between $1500 and $2000, depending upon the sophistication and whether the quality of the end product necessary would approach the integrated qualities of a non-provisional application. In the case of a provisional application resulting from such a 1-day session, a very high effort and time commitment for such a document, it will more likely be appropriate for the amount due for the end product to be billed according to the time spent.
My standard billable hour on my present fee schedule (at the time of this post, in June 2017) is $250/ hour. This means that 10 hours amounts to a $2500 bill. 12 hours is $3000. The 24 hour commitment cleared from my schedule warrants, I think it is fair to state at this moment, is worth at least half-time. So the following day is another $1500, as a starting expectation.
Factors weighing in favor of the billability of the following day include whether or not the application is filed, particularly if filed within the next day or reasonably few days thereafter. A client manifesting a late-developing-interest in treating the effort as only worth filing a provisional application should be advised that the cost of filing a provisional application will not be credited against the cost of drafting the subsequent non-provisional application claiming the benefit of a provisional application. The heightened effort and commitment will not be allowed to be reduced to the mere amount typically expected for a provisional application conducted according to the typically less-demanding surrounding circumstances for such a document.
Note that if it becomes apparent, early in the day (rather than suspiciously late in the day, after significant amounts of 24-hour-drafting-level efforts) that a provisional application is instead what is the best course of action, then I will ask the client whether they would prefer to terminate the 24 hour drafting session service, and undertake an ordinary execution of a provisional application, as I believe the intensiveness of this service is overkill for that purpose.
If the representation is terminated at the end of the day, even if a provisional application-level document was produced, then the former client is not responsible for the costs of that second day (the costs first day’s efforts already being earned and otherwise unaffected), but the client is also not entitled to the work product of the application. Independent efforts of the client to pursue prosecution in their own name will not be allowed to unjustly seize upon the work product developed during the session without compensation for the efforts to create such work product.
Because of all of the ways that such a session might be terminated or required to be rescheduled, a minimum retainer for arranging the service of $1500 is required at the time of scheduling the event to be held in trust in my IOLTA account, and that amount is presumptively earned at upon review of the preliminary documents. The $1500 will be credited against the arranged overall cost of the 1-day drafting service.
While the $1500 is the mandatory amount to schedule this service, it is preferred that at least half of the total fee agreed-upon for the nonprovisional application is deposited in my IOLTA account at the time of scheduling (including the $1500 preparatory cost), but an amount equal to that sum (reduced by the amount of $1500 preparation fee, if already earned at the time that the rest of the half-fee is delivered to me for deposit into my IOLTA account) is not strictly due until the time of the beginning of the session.
The session will not commence unless the entire half-fee has been delivered to me by that time. If it is not timely delivered, then I will require the session to be rescheduled.
If a session is rescheduled, then no additional amount is earned, and no additional fee will be applied until subsequent efforts in furtherance of the representation are made.
Cancellation of the session without rescheduling the 1-day session terminates the ability of the preparatory efforts to be credited against a subsequent session, barring exceptions such as rescheduling after cancellation within a very short window following cancellation. Cancellation includes termination of the session according to any of the reasons stated above or below, including those which are at my own discretion, such as loss of candor, discord or uncooperativeness among the attendees, etc.
Reasonable expectations of “very short window” are subjective but will be no longer than 4 days, barring good cause (e.g. good faith assertions of a family emergency, loss of funding, dissolution of the prospective client entity). No time limit is set for re-initiation of a session where a “good cause” was the reason to reschedule or cancel. No refund will be allowed for those services rendered as the preparation for the service. The preparatory cost will not be applicable any subsequent services other than the 24-hour drafting session or an appropriately rescheduled 24-hour session.
My goal is quality and timeliness. This service is offered in order to target the elimination of wasteful redundant, piecemeal, and ponderous efforts. I look forward to reveling in your enthusiasm and spending the time with you to help you protect your inventions.
[Update, 06-08-2017: see my new blog post: Why isn’t your collaborative 1-day drafting service available from other firms?]
From that post:
The patent lawyer community, particularly evidenced in Raleigh, RTP, and perhaps all of North Carolina in general, is moving towards larger and larger clients. Bigger clients have many projects in their primary field of expertise and perhaps slightly outside of it. When large entities with massive financial and personnel resources want to pioneer a new technology space, they can throw themselves into it, and this creates a potential boondoggle for law firms. Nobody really knows what’s going to get a foothold in the USPTO patent examiners’ collective psyche as being an unanticipated realm ripe for innovation. If something sticks, then there is a massive opportunity for preparing huge amounts of billable work. It is simply too tempting to resist, and so law firms, seeking stability and a powerful niche of burgeoning technology, shape their firms to suit that sort of client. North Carolina is especially susceptible to this trend because it is a hotbed for inventions in fields that suit this pattern, namely biological and medical research, and information technology and data handling. In absolute terms, it may be second only to California in “tech,” but because of its smaller population, it has a smaller intellectual property community, and therefore almost certainly has a higher ratio of highly-billable high-tech clients per patent attorney.
Daniel Becker, Attorney at law, PLLC. is a different sort of firm. I pride myself on client involvement and prioritizing filing the best and fewest applications possible, to move clients with a modest range of embodiments of technologies toward patent protection. I do it because they deserve it, and they need it. I want to make the different between a merely capable inventor and a business that can blossom into its own market player and development center for advancing its technology.
1-day drafting allows for an inventor that is turning the corner on narrowing its invention toward reduction to practice to rapidly see-off delayed entry to the patent process by getting them into a room where they can funnel their innovation into me, so that I can encapsulate it densely as concentrated opening shot into patent prosecution. This way lets the inventor continue to be “master of his invention,” but delegate that cognitively dissonant burden without taking away from his need to focus on the product itself.
To read more about what 1 – day drafting is, visit the services page for 1-day collaborative drafting.