The writing places a enormous emphasis on the importance of patent attorneys in the patent/copyright process. On some level this may reflect the writers' professional careers in patent law, but on the whole the description is consistent with other sources.
While inventors do have the legal right to represent themselves in patent claims as in court, "one who does so has a fool for a client", says Essentials. Of the patents produced by inventors themselves:
There are, obviously, of little value. The quality (and value) of a patent is highly dependent on the skill and knowledge of the person who drafts and prosecutes the paten application. Expertise in both the relevant technology and patent law and procedure are required. Such expertise is not inexpensive."
They don't go into any detail about the actual cost, but I found the following estimates on an IP watchdog site: attorneys fees often exceed $12,500 depending on complexity of the process and patent. Business method or computer software patents come "quite cheap" at $5,000 to $10,000, but a cheap software related patent would be much weaker than a full patent application costing at least $20,000. The estimate closes with the adminssion that:
The devil is always in the details. Getting a stronger patent requires more claims and more attention to providing both a detailed and broad disclosure. This, of course, requires greater attorney time and higher filing fees, which in turn requires more time spent working with the patent examiner to get the patent issued."
So a couple things seem evident to me at this point in my studies
- 1. Obtaining a patent depends largely on the substance of the patent application – perhaps as much as the patent itself.
- 2. A substantively robust/tailored patent requires a specialized knowledge of patent law and procedure.
- 3. Most creators – a word I will use for "inventors" from now on – do not posses such a knowledge.
- 4. Hiring a serviceable patent attorney cost a significant amount of money.
- 5. Those without a significant amount of money are at a great disadvantage in the "marketplace of ideas", to use Brandeis' phrase in a different context.
And I suspect similarly that defending an existing patent/copyright requires the same sort of resources. Again, we see a tilted playing field.
In a market society such as out own, this seems intuitively to be the appropriate way to do things. Success requires an investment, and those willing to make that investment should reap rewards beyond those who ventured not, who did not invest money into the patent/copyright project. And this does feel like it makes sense.
It remains, however, uncomfortable to me because we are not talking about investment in or ownership of gold, or even securities. In these cases the risk is in a commodity valuation or a company's performance. In IP issues the risk is in the development and expression of an idea, which it seems should be difficult to own, or at least to own exclusively. At this point, I think, is the crux of my basic concern with IP and a rail along which continued study here might travel: the troubling concept of exclusive ownership of an idea or concept.
