Wednesday, August 20, 2014

Drawing Blood

There seems to be no way around it:  patent drawings cause a lot of anxiety.  This is understandable. The drawing regulations for the USPTO are hard to find (37CFR§1.181 through 1.185).  They are confusing.  And horror stories about patent drawings are all too common.

The purpose of this post is to put this anxiety behind you by providing you with some assumptions that can be used to help guide you through the process.

Assume that drawings are always required.  A first reading of the USPTO regulations often leads people to believe that:  1) drawings are not always required for a patent; or, 2) that photographs can be substituted for drawings.  These people are correct: the regulations do say that.  Unfortunately, as a practical matter it doesn't work that way.  The USPTO requirements for waiving the drawing requirement and permitting substitution for a photograph are so restrictive that it never really occurs.  In the end, the best strategy is to simply make the drawings.

Assume an applicant should put into drawings everything they think is important.  The USPTO regulation is pretty clear herethe drawing in a non-provisional application must show every feature of the invention specified in the claims.  Unfortunately, as a practical matter an applicant rarely knows the contents of their claims until the patent application and patent search are completed.  In the end, the best strategy is to trust the inventor.   An inventor knows more about their invention than anybody else so if the inventor thinks a feature is important it is best to put it in the drawing.

Assume your application drawings have to be publishable.  The USPTO drawing standards are strict for a reason.  In the end, these drawings will be published and the USPTO has no control over how drawings will be used. The USPTO standards exist so that once the patent is published the drawings will be legible and understandable whether they are rendered on a smart phone or printed on a 30 year old dot matrix printer.  In order to accomplish this, the USPTO requires that drawings be ready for publication before they release an application for examination.  While there are technicalities that might allow examination to start before the drawings are finalized don’t be tempted by this illusion.  A patent that proceeded along those lines would be served with a requirement to prepare drawings compliant with the standards within 60 days from the date of the notice.  The penalty for failing to comply is the abandonment of the application.  In the end, the better strategy is to just make drawings that comply with the standards.

Assume that patent drawings are not expensive.  There are a lot of patent drawing services that can provide drawings that meet USPTO standards.  Typical prices range from $35 for a simple drawing to $150 for a complex drawing.  It is reasonable to assume that a set of drawings for a simple mechanical patent will cost less than $500. Almost every service in the market provides fixed price quotes.

Assume you need more drawings.  The purpose of a patent drawings it to assist in understanding the inventions and, to put it frankly, patent drawings are quaint by today’s marketing standards.  They are black and white line drawings with no shading, no 3D rendering and lots of numbers with no text.  They are not suitable for use with marketing or other types of pitch materials.  An inventor should assume that marketing drawings and other renderings will also have to be produced.

Assume that your patent representative can help you.  Remember that you are not alone.  Patent agents and attorneys look at patent drawings and work with patent drawing services on a daily basis.  If you have concerns and questions, don’t hesitate to ask your representative.  That is why we are here.

Below is a summary of selected patents that have been recently issued in textile related classification codes:

Shading process:  A shading process characterized by using a composition comprising a phthalocyanine to which at least one dyestuff is attached through a covalent bond.  This one is a beast but the bulk of the patent appears focused on attaching dyestuff covalently to the outer edge of the phthalocyanine complex.  I believe one target of this patent is to replace brightening agents used in laundry detergents with the benefit of not changing the color of the underlying fabric, however, the patent may be significantly broader in scope.      Patent:  8685116.  Inventors:  Hohener,  Assignee:  BASF Se.

Elastic boot cuff:  A decorative article for boots comprising a cuff manufactured from either a length of material or elastic material having fur, feathers or other decorative articles fastened thereto. An interior pocket is included for storage of money, credit cards, I.D. warmers, coins and the like.  Patent:  8683715.  Inventors:  Cantrell and Cantrell.  Not Assigned.

Shoe tongue securing device:  A shoe having an upper with a tongue and an outer shell in which the tongue has a bulging extension on the medial side, in which the outer surface of the tongue has a connector that is aligned with a connector on the inner surface of the outer shell. When the connectors are aligned together, the tongue is secured to the outer shell.  Patent:   8683716.  Inventors:  Raysse,  Assignee:  Skechers U.S.A., Inc. Ii

Support for inclusion in article of footwear and method for raising the arch of a person's foot:  A support arranged for disposition within a shoe to raise the arch of the foot by turning the forefoot and inverting the rearfoot, thereby locking the midtarsal joint. Patent:  8683717.  Inventor:  Richie.  Not Assigned.

Jim Carson is a principal of RB Consulting, Inc. and a registered patent agent.  He has over 30 years of experience across multiple industries including the biotechnology, textile, computer, telecommunications, and energy sectors.  RB Consulting, Inc. specializes in providing management, prototyping, and regulatory services to small and start-up businesses.  He can be reached via email at or by phone at (803) 792-2183.

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