Brett Trout
When people hear the word “patent,” they often assume it’s a uniform stamp of protection—something rigid, standardized, and identical no matter who files it. But here’s the truth that savvy inventors and business owners come to learn: not all patents are created equal.
In fact, no two patent attorneys would draft the same patent for the same invention. Why? Because patent law isn’t just about filling out forms and submitting diagrams. It’s about strategic protection—positioning an invention in a way that’s both defensible and flexible enough to support future innovation. The differences in how a patent is drafted can radically impact its strength, scope, and long-term value.
Good Patents vs. Bad Patents
Just because a patent is granted does not mean it is good. One of my guilty pleasures is watching Shark Tank and looking up the patents to determine if the patents are good or bad (I am super fun at parties). While it is easy for a skilled practitioner to recognize flaws in an issued patent, it can be extremely difficult for an ordinary person to do the same.
What most people do not realize is that there are plenty of bad patents out there—and they usually do not reveal their flaws until it is too late. They may look impressive in a frame or on a pitch deck, but when it comes time to enforce them or use them strategically, they fall apart.
So what separates a good patent from a bad one?
| Good Patent | Bad Patent |
| Thoughtfully drafted with long-term strategy in mind | Rushed or templated with no future vision |
| Broad enough to cover design-arounds and variations | So narrow that competitors can easily work around it |
| Rooted in a strong understanding of the market and competitors | Written in a vacuum with no business context |
| Supported by solid technical disclosure and flexible language | Vague or overly technical, limiting legal enforceability |
| Part of a larger patent family or continuation strategy | Filed once and forgotten, limiting growth |
| Enforceable in court — written with litigation insight | Difficult to defend or easily invalidated under scrutiny |
In essence, a good patent protects more than your invention — it protects your business model. It gives you leverage in partnerships, confidence in investment conversations, and real options if competitors cross the line.
A bad patent? At best, it may give you a false sense of security until the day you actually try to sell or enforce it.Getting a bad patent is easy—getting a good one takes the foresight, skill, and experience of the right legal partner.
The Art (and Science) of Patent Drafting
Think of a patent like a fortress. One attorney might build a tall, narrow tower with thick walls—a highly specific claim that’s hard to attack but easy to walk around. Another might design a sprawling defense with multiple entry points covered, anticipating how competitors might try to move in and sidestep the protection.
The scope of a patent’s protection is defined by its claims. Claims are one sentence list of the invention’s critical elements. If any competitor makes a product that includes every element in a claim, that product infringes that claim. Even if a competitor adds new elements to the product, as long as they include all of the elements in the list they infringe. That is why it is critical to make the list of elements in the claim unique enough to not cover anything that is already in the public domain, but not so detailed that it would be easy for a competitor to eliminate one of the elements and thereby avoid infringement. Optimizing this broad, but not too broad, strategy is what separates broad and narrow patents, and what separates good patent attorneys from bad patent attorneys.
While a narrowly written patent might be cheap to prepare and quickly approved, you may not realize how easy it is to avoid such patents until you try to enforce them against a competitor. A broader, more strategic patent might take longer to prepare and face more challenges at the United States Patent and Trademark Office (USPTO), but it will likely provide vastly more business leverage down the line.
Why Keeping a Patent Application Alive is a Power Move
Another aspect that separates a good patent strategy from a great one is what happens after the first patent is granted.
Savvy patent attorneys typically advise clients to keep the original patent application alive by filing continuations or continuation-in-part applications. Why does this matter? Because the initial disclosure becomes a wellspring from which multiple patents can grow, each tailored to different aspects of the invention, new commercial uses, or evolving market threats.
This layered approach allows businesses to:
- Broaden their intellectual property footprint over time
- Respond to competitors’ designs that attempt to avoid initial claims
- Create a family of patents that are harder to invalidate or design around
Strategy Comes Before Drafting
It’s tempting to dive into drafting the patent application as soon as the invention is ready. But rushing this step is like designing a house without an architect. The most valuable patents begin with a well-thought-out protection strategy.
An experienced patent attorney doesn’t just write claims—they ask the right questions upfront:
- What’s the commercial goal of this patent?
- Who are the likely competitors, and how might they try to work around it?
- What future versions or variations of the product might need protection?
- Should we consider international filings or related trademarks?
A great patent strategy considers not just the invention itself, but the business plan behind it, the competitive landscape, and the long-term vision of the company.
Why Litigation Experience Matters in a Patent Attorney
One of the most overlooked but highly valuable assets in a patent attorney is litigation experience—specifically, experience arguing patent cases in federal court. While many patent attorneys focus solely on prosecution (getting patents granted), those who have stood in court to enforce or defend patents gain insights that dramatically shape how they draft them.
Here’s why that matters to you:
When an attorney has litigated patents, they have seen firsthand how claims are dissected under a microscope. They know how judges interpret vague language, how opposing counsel attacks claim construction, and how the slightest ambiguity can make or break a case. This knowledge gives them a unique edge when drafting your application: they’re writing with a courtroom in mind, not just the USPTO.
An attorney with litigation experience can:
- Anticipate how claims might be challenged in a future infringement lawsuit
- Draft language that’s clearer, more defensible, and better positioned to survive scrutiny
- Include strategic definitions and disclosures that give you more control over how your invention is interpreted later on
- Understand how to create a record that supports enforcement—something most inventors don’t think about until it’s too late
In short, litigators write patents with teeth. They don’t just aim to get you a patent—they aim to get you a patent that courts will uphold and competitors will either respect, or pay the price.
If you want a patent that holds up not just in the USPTO but also in the real world—when competitors push boundaries or copy your innovation—you may want to search out a patent attorney who has been through the fire of federal court. It could be the difference between owning IP that looks good on paper… and IP that actually protects your market.
Final Thoughts
If you’re serious about protecting your innovation, don’t settle for a cookie-cutter patent. Choose a patent attorney who thinks like a strategist, not just a scribe. The difference between a good patent and a great one can determine whether your IP is a minor speed bump for competitors—or a fortress they will never breach.
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