IndyBar: Blow up the MPEP Sections Discussing Drawings

Trenton Morton

By Trenton Morton, Mercy For Animals

The rules that govern patent drawings deserve an overhaul. I propose a simple idea: delete the entirety of MPEP § 608.02 and 37 C.F.R. §§ 1.81–1.85. Drawings should need only satisfy 35 U.S.C. § 113 and other, specification-associated statutory sections. That’s it. Nothing more. Here’s why this is a good idea:

• It’ll democratize part of the patent procurement process.

• Beneath the surface, MPEP § 608.02 and 37 C.F.R. §§ 1.81–1.85 are dusty antiques.

• Your worries are unfounded.

Democratize: My idea will simplify patent applications and permit more applicants to handle part of the application process on their own. Professional drawings are expensive. Dense walls of text discussing rules for patent drawings plague the Manual of Patent Examining Procedure. Short rules — quite simply, the statutes — for drawings will help applicants reduce costs. Indeed, today, many applicants have the marginal computer savviness to create drawings that satisfy the patent statutes, quickly and affordably.

Modernize: Today’s MPEP § 608.02 and 37 C.F.R. §§ 1.81–1.85 rest on technical assumptions from more than a half-century ago. The discussion pertaining to line thickness, ink, paper, legibility and reproducibility, among other irrelevant concerns by today’s standards, appears in MPEP Version 3, Revision 23, which appeared in January 1970. Yes, you read that right. Much of the spirit of today’s patent drawing rules existed in 1970.

Today’s technology eliminates the concerns that these rules contemplated. Although creating clear, informative and reproducible patent drawings might’ve required artistic and technical expertise if you applied for a patent during the Nixon administration, today’s drawing and photographic tools and software empower middle schoolers to create drawings that professionals of yesteryear would salivate over. And in a fraction of the time. Deleting MPEP § 608.02 and 37 C.F.R. §§ 1.81–1.85 will have an instant modernizing effect.

Relax: I can already hear the “that’s the way we’ve always done it”crowd. Sorry, chaos wouldn’t ensue if my pipedream of a proposal came into fruition. Drawings that satisfy the patent statutes will survive. Those that don’t, won’t. To that end, patentees have an incentive to create their drawings with clarity anyhow, to gild the disclosure-based lily.

Won’t there be sloppy or inconsistent drawings? Maybe, but who cares? If all the drawings satisfy the statute, they’re acceptable. If an applicant wants to submit pencil-drawn slop, then so be it. The examiner-as-judge arrangement at the U.S. Patent and Trademark Office incents applicants to present drawings that are easy on the eyes anyway, so the slop should remain minimal.

The balance checks out. Even accepting the possibility that patent drawings might look sloppier or less consistent, the democratization and modernization benefits discussed above overcome the possible, alarmist objections. Don’t let the current state of the MPEP sections on drawings — needlessly complex and hopelessly antiquated — be the enemy of better. Blow those sections up.•

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