Estimated reading time: 7 minutes
Summary:
This article explains why focusing on the odds of getting a patent is a strategic mistake for inventors and entrepreneurs. Instead of treating the United States Patent and Trademark Office (USPTO) like a casino, you should view it as a structured legal negotiation based on evidence. By understanding how examiners use prior art, you can shift your focus toward building a robust legal strategy. Learning the right questions to ask your attorney will help you secure valuable intellectual property and improve your overall patent success rate.
Key Takeaways
- Understand why a “win-loss” percentage is a misleading metric when hiring a patent attorney.
- Learn how Patent Examiners evaluate your application against existing “prior art.”
- Discover the “building permit” analogy for navigating USPTO regulations.
- Identify the three critical questions that actually determine your project’s viability.
- Understand why an “Office Action” rejection is a normal part of the process, not a failure.
Table of contents
Prefer to watch instead? Check out the video below.
What Are My Odds of Getting a Patent?
I hear this question in almost every initial consultation. Whether I am speaking with a solo inventor or a seasoned startup founder, the sentiment remains the same. You are about to invest significant time, energy, and capital into an idea. Naturally, you want to know the “ROI” or the likelihood of a “win.”
However, asking for a “success rate” is a mostly meaningless question that people ask when interviewing patent attorneys. It stems from a false belief that the legal system operates like a lottery. People often think an attorney’s personal “win rate” determines whether their invention is going to be granted a patent.
Securing a patent is not a game of chance. It is a structured legal analysis. If an attorney tells you they have a 90% or even a 100% patent success rate, they are doing you a disservice. They are likely avoiding having to explain to you the complex reality of how the Patent Office actually works.
Reality of the Patent Examiner’s Desk
When we file a patent application at the USPTO, it lands on the desk of a Patent Examiner. This person is a civil servant, often with a deep technical background in your specific field. Their job is not to see if you are a “winner.” Their job is to compare your invention against what we call the “prior art” (anything that has come before your invention).
Think of the patent examination process like applying for a building permit. If you want to build a house, the city doesn’t grant a permit as part of a lottery or because your contractor somehow got “lucky.” They don’t even care if your contractor has a good success record with previous builds. The city building department will only grant you a building permit if your blueprints follow the local zoning laws and building codes. In the world of intellectual property, those “zoning laws and building codes” are akin to the novelty and non-obviousness of your invention.
During patent examination as part of the background research, the Patent Examiner scours prior art sources from around the globe (yes, a worldwide search) for:
- Previously issued patents.
- Published patent applications.
- Products already available in the marketplace.
- White papers, research and conference papers.
- Social media posts, YouTube videos and other Internet sources.
If your invention matches something that already exists, or even if it is merely an “obvious” step forward from existing an technology, then the Examiner issues a rejection. This isn’t about the odds of getting a patent; it is about the merits of your invention.
Acknowledging and Navigating the Human Element
While the law provides the framework, I do acknowledge that there is a human element. Patent Examiners are people. They have individual biases, varying levels of experience, and different ways of interpreting the law.
We cannot control which Examiner receives your file. However, we can control our filing and prosecution strategy when presenting your case to the USPTO. This is where working with an experienced patent attorney comes in. A well-written patent application anticipates these human hurdles. When I draft an application, I’m not just describing a “cool idea.” I am framing the legal “claims” to navigate around the prior art and build in additional aspects and different ways of describing your invention so that we have something to fall back on should the Examiner consider the initial claims to be too broad in view of the prior art.
An experienced patent attorney knows that a rejection (written in what is formally called an “Office Action”) is a normal part of the conversation. In fact, most successful patents have faced at least one rejection during the examination process. It is a back-and-forth negotiation with the government. We aren’t gambling; my job is to advocate for my clients.
Why the “Success Rate” Metric Is Meaningless
If you focus purely on the patent success rate when hiring a patent attorney, you might miss the most important detail: the quality of the patent application.
It is actually quite easy to get a 100% success rate if you make the patent claims incredibly narrow. If I describe your “new” chair as having five legs, a built-in cup holder, and a purple velvet seat with gold tassels, the Examiner might grant it because nobody else made that exact, specific chair.
But is that patent valuable? Probably not. A competitor could just change the color or remove the tassels and sell their own version without infringing on your patent. You “won” the patent, but you lost the market. This is why asking about the odds of your attorney being able to get a patent to issue for you shouldn’t even be in your vocabulary when interviewing patent attorneys. You need a patent attorney who has the experience to write and prosecute an application (including working with the Examiners at the USPTO) that will result in a patent that actually protects your business.
Here’s what you should be asking patent attorneys you interview instead.
Question 1: How Thorough Is Your Prior Art Search?
Instead of asking about odds, ask about the background research the patent attorney will be doing. Knowing what is out there is more than half the battle. If we find a piece of prior art that looks like your invention, we can pivot early. We can refine the claims to focus on the unique aspects that the prior art lacks.
A thorough search transforms the “unknown” into a manageable map. It allows us to walk into the Patent Office with our eyes wide open.
Question 2: How Strategically Will You Draft My Claims?
The “claims” are the most important part of your patent. They define the legal boundaries of your invention. You want your claims to be broad enough to prevent competitors from “designing around” you, but narrow enough to be patentable over the prior art.
This balance determines your true patent success rate. You aren’t looking for a “yes” or “no” answer. You are looking for the strongest possible “yes.” This is something that only comes with experience.
Question 3: How Will You Handle a Rejection?
Since rejections are a standard part of the process, you need a plan for when they happen. How will your attorney respond to the Examiner if (likely, when) you get a rejection? How will your attorney distinguish your invention from the references they cite?
Securing a patent is a legal marathon, not a casino game. You need a patent attorney who handles your file directly and understands the technical nuances of your work. Someone who knows how to work with (not against) the Examiner to reach a granted patent.
This Isn’t a Game: Moving From Chance to Strategy
Stop looking for a “win rate” and start looking for a strategy. When you work with me, you work directly with a practitioner who has spent 25 over years navigating the USPTO. I don’t rely on luck. I rely on a deep understanding of the law and a commitment to my clients’ long-term business goals.
The odds of getting a patent improve significantly when you stop treating the process like a roll of the dice. You are building an asset. Let’s build it with a foundation that can withstand the Examiner’s scrutiny.
Conclusion and Next Steps
If you are ready to stop guessing and start building a real patent strategy for your startup, I am here to help. We can look at the prior art together and determine the best path forward for your unique invention. You deserve a clear assessment of the legal landscape, not a sales pitch based on “odds.”
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