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DIY intellectual property: Really, how hard can it be?

Well, it's kinda like removing your own appendix


We often receive inquiries at our firm from people wondering whether they can prepare and file either a trademark application or patent application themselves without an attorney. Of course, for purely selfish reasons as an attorney, I am not thrilled about losing potential revenue, but there isn't any legal reason or rule that prevents a person from filing their own intellectual property paperwork. I say go for it — what is the worst that can happen?

As an aside, please forgive me if my column seems a bit disjointed and my prose a bit forced. You see, I am in a lot of pain right now. I noticed my abdomen was rather sore and tender a couple of weeks ago. After a little Internet searching, I came to the conclusion that my appendix was inflamed. With my deductible and copays, I figured an appendectomy was going to cost me several thousand out of pocket. Seriously, why is surgery so expensive? I mean all the doc has to do is cut a small hole, reach in and cut the appendix off, and sew everything back together. “How hard can it be?” I thought.

After a few hours of Internet research and watching a bunch of YouTube videos, I decided to give it a go and cut that pesky appendix out myself. I boiled water, sterilized a bunch of X-Acto knives, set myself up in front of a mirror and got busy.

I am not going to lie: It was a bit more difficult and painful than I imagined it would be. But I did find what I think was my appendix, and I did cut it out. Gosh, I really hope it was my appendix and not something else important. I managed to sew everything up, and well, I am just fine now except for the pain. I am in a lot of pain, and my abdomen is kind of sensitive to the touch and frankly, a bit inflamed. I am sure if I take a couple Tylenols I will be just fine. It's not like an appendectomy is major surgery after all. I mean it couldn't kill me, right?

Filing for trademark registration is nothing more than filling out an online form. Sure, you have to decide whether the mark is actually in use and what constitutes proper use as far as the trademark office is concerned. Sure, you have to pick a proper class of goods category and draft a proper description of the goods covered by the mark. None of this is anything that can't be learned with enough time and effort. I suspect someone of above average intelligence could figure it all out and have a fighting chance of getting it right with 10-30 hours of research and study.

Really, what is the worst that could happen if you get it wrong? The registration never goes through; someone else starts using a similar mark for similar goods; you have to change the name of your product or service; and you lose all the goodwill built up over the years in your brand. Not so bad, right? Besides, you will have saved a few hundred dollars doing it yourself in first place.

Patent applications are a little more work. They aren't so much applications in the traditional sense as written documents describing an invention and setting out the legal metes and bounds of your exclusionary rights. There are books available to help you draft an application yourself, and with a couple hundred or so hours of study, you should be able to do a passable job on everything but the claims.

Claims, which are the most important part of a patent application, take a bit more time to learn. I figure that a newbie patent lawyer right out of law school is good to draft claims on his or her own without partner review after a couple of years of practice, but absent a thousand or more hours of experience, you can still get lucky and write a great set.

Again, what is the worst that could happen? You never get a patent or the patent you get is extremely narrow in scope and breadth; a well-heeled competitor starts making something very similar and does great in the marketplace without infringing your patent rights because it made a small change to a rather insignificant feature you, for some inexplicable reason, included in your claims; and you lose the opportunity to license the patent for a sizable royalty. Seriously, what's the chance your new product, service or innovation is going to do that well anyhow? The most important thing is that you saved a few grand now.

Ummm ... I think I need to wrap this up. I am feeling kind of faint.

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Kurt Leyendecker

Kurt Leyendecker is a founding member of the intellectual property law boutique, Leyendecker & Lemire. Leyendecker & Lemire specialize in patents, trademarks and related complex civil litigation. Kurt Leyendecker can be reached directly at 303.768.0123 or kurt@coloradoiplaw.com. Visit www.coloradoiplaw.comfor further information, including Leyendecker & Lemire’s weekly blog, “Control, Protect & Leverage.” 

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