Guidance for those who drafted their own UK patent application, and have been advised to speak to a patent attorney

Statistics on self-drafted applications

For decades, we have received a steady stream of enquiries from patent applicants who have drafted and filed their own patent applications at the UK Intellectual Property Office (UKIPO) and are unsure how to deal with the next stages.

In our experience, most self-drafted, self-represented cases will not lead to a granted patent. This is usually due to a lack of detail or clarity about the essential elements of the invention. 

Our experience is reflected in official statistics (link), which reveal success rates of less than 5% for self-filers. By contrast, attorney-drafted UK applications have success rates in the 60-90% range depending on the technology. If a granted patent truly matters to you, investing in a patent attorney should be worthwhile. 

What happens after filing?

If you have filed your own application and paid an application fee, the UKIPO is likely to issue a letter citing the Patents Act 1977 and Patent Rules 2007, listing any formal deficiencies and deadlines for correction. These ‘formality reports’ typically set deadlines for one or more of the following: filing of claims; filing of abstract; filing of missing parts; designation of inventor; payment of a search fee; payment of an application fee; or formal drawings.

The letter may also recommend that you seek professional advice, for example by speaking to a patent attorney. The UKIPO issues this statement to applicants who appear to be unrepresented private individuals, whose applications are at a high risk of being refused. 

In any case, we recommend that you speak to us as soon as possible after you’ve filed an application, and before you publicly disclose the invention.

What can’t we do?

We cannot convert a self-drafted patent application into an attorney-drafted application, due to constraints on amending applications. New detail cannot be introduced.

What can we do?

Usually, the best course of action is the withdraw the patent application, re-draft it professionally, and re-file it with a new filing date. We can accommodate a range of budgets and will quote in advance of undertaking work. 

The re-filing option may not be possible if you have publicly disclosed the invention. This is because UK patent applications must be filed while the invention is still secret. In these circumstances, we must use the self-drafted description. If the self-drafted description is too vague, we may advise giving up on the patent application and focussing more on alternative forms of protection if suitable. We may also advise waiting until you have developed the next version of your product, so we can apply to patent the next version of the product before you publicly disclose it. 

If continuing with the application using your self-drafted description seems to be the best course of action, we will do our best to secure the broadest scope of protection possible. The success rate may be lower. The author of this article remembers one self-drafted application becoming a very successful patent, although the client did have a friend with some patent experience to help draft it. 

Will AI drafting tools change things?

Nowadays, self-drafted applications are increasingly drafted with the assistance of public AI tools such as ChatGPT™, Gemini™, CoPilot™, etc. 

While AI tools have started to gain a foothold for repetitive, template-based legal documents, patents are a rather ‘different beast’ because every patent is supposed to define something unique. Usually, 70-90% of a patent specification is ‘original prose’ rather than copied and pasted paragraphs.

We have seen several AI-drafted patent specifications from new enquiries. So far, they have all been at greater risk of refusal than applications self-drafted by hand. Precise language has been replaced with legal jargon and bullet points, exacerbating the pre-existing lack of clarity. Each time, we have had no option but to advise re-drafting and re-filing (if possible).

It is not impossible to use AI as part of the patent drafting process. However, even professional AI tools specifically designed for patent attorneys have so far proven unsuitable for drafting tasks within the constraints of UK patent law, and more suited to proofreading tasks where the underlying specification was drafted by a human patent attorney. 

The official statistics linked earlier in this article (<5% success rate) are for self-filed applications filed before 2023, so reflect the situation before AI tools existed. There are no statistics for recent AI-drafted applications, and the collection of statistics on AI-drafted applications will prove rather difficult because applications are not labelled as such. 

If you have any questions regarding this article, or would like further assistance, please contact your usual Swindell & Pearson attorney or Tim Gilbert, the author of this article.