Patent Prosecution Malpractice

In the December 10, 2007 edition of the National Law Journal, an article discussed the rising rate of patent malpractice claims being filed against firms for prosecution mistakes (Sorry, no link - paid site). The article asserted that the risks of being sued are not keeping up with the rewards, noting that “run-of-the mill prosecutions can net law firms as little as $800 and even more specialized versions can net them only $5,000.” With the number of malpractice claims going up, more firms were likely to end their prosecution practice.

What is the cause of all of this malpractice going on? Well, the article opines, it may be that in 2005 we had 390,733 new utility applications filed, while in 1996, we had 212,377 applications, an 84% increase in work load. You would certainly expect that patent prosecutors under extreme price pressure would file an increasing number of patent applications that give rise to more malpractice claims. If we reduce the number of applications being filed by increasing the fees, the pressure to file will be reduced and clients will be less likely to force their patent counsel to accept such small margins. Fewer patent applications will mean fewer deadlines missed resulting in less malpractice.