Inventors meeting with a legal practitioner should be informed and realistic
One of the problems independent inventors can face when seeking representation from a patent attorney is an unfavorable stereotype—about inventors. This stereotype based on a minority paints an unfavorable picture of the majority.
There is no easy way to say this, so I’ll just say it. If you want competent representation from a patent attorney or patent agent, you cannot come off like a crazy inventor: out of touch with reality and/or combative. Sure, even an inventor wearing a tinfoil hat may eventually be able to find a desperate patent practitioner to represent him or her, but you’d rather be working with the professional of your choice.
So remember that patent attorneys are frequently on guard when dealing with independent inventors, just as the inventor may be wary. The more you know in advance, the better prepared you can be.
1. Confidentiality guidelines
Patent attorneys and patent agents are required by federal regulations to keep confidential the information they obtain from clients. Confidentiality requirements embodied in federal regulations specifically applicable to patent attorneys apply not only to those who are clients but to prospective clients. A prospective client is anyone who comes to a patent attorney seeking help, advice or direction on a legal matter.
You do not need a confidentiality agreement when speaking to a patent attorney as a client or a prospective client—and in fact, most patent attorneys/agents do not sign confidentiality agreements. Federal regulations already in place are stronger than any confidentiality agreement anyway.
If you insist that a patent attorney sign a confidentiality agreement because you do not trust the mandatory requirements placed on patent practitioners by federal regulations—something many inventors have told me over the years—that is a quick way to be viewed as someone with whom working will be difficult. It is a big red flag.
Having said this, some patent attorneys prefer an initial consultation be non-confidential. Usually, this is because patent practitioners represent existing clients. So without knowing what your invention deals with, there is no way to know whether there is a conflict of interest that would prevent the attorney from representing you.
For that reason, it is perfectly reasonable to ask whether an initial conversation will be treated as confidential under the previously mentioned federal regulations, or whether the initial conversation is non-confidential. If the patent attorney or agent tells you he/she prefers to speak in a non-confidential capacity until it is determined whether he/she can proceed with representation, you should not disclose anything confidential. Such a disclosure today would create many potential problems under first-to-file laws.
2. How to prepare
Obviously, you should come to any meeting with a patent agent or a patent attorney prepared with information relating to your invention. More important, be prepared.
One of the most difficult things for patent practitioners is when they are representing someone who cannot or will not help them. This can actually take several forms: an inventor’s inability to assist (i.e., language barrier); never being available; and an inventor who is trying to be so helpful that he/she dumps huge amounts of disjointed and rambling information onto the patent practitioner, expecting the legal professional to sort through it all and make sense of everything.
The patent attorney you hire is there to represent you, and needs your assistance. If you really have an invention, you know the invention better than anyone. Cooperation and communication are crucial. The opportunity to establish a working relationship starts with the first meeting or contact; hence the need to be prepared.
Everyone reading this will likely have different inventions, so it is hard to give general advice on what type of information should be prepared. But the patent attorney needs to know the basic configuration of the invention, as well as any optional enhancements that can be added.
Pictures can be particularly helpful if your invention is conducive to photography; a picture really can be worth a thousand words. If there are key pieces or aspects of your invention, consider taking pictures of those. If you have any artistic talent or drawing skills, line drawings can be quite effective to convey information.
If you are having difficulty coming up with a package of information to provide your attorney, consider the Invent + Patent System™. One of the perfect uses for the system is to help inventors collect their thoughts relating to an invention so they are cohesive and manageable.
Having a package of information that describes your invention in writing, together with photographs and/or line drawings, will go a long way toward establishing a sincerity about your pursuit. It will also reduce at least some of the time any patent attorney will have to spend sorting through disjointed information, providing you added value for how much you are spending.
3. Be prepared to pay for services
Expect to pay for services rendered. You are going to a professional to seek professional assistance. Patent attorneys and patent agents do not sell products; they sell services, which means all they have to sell is time.
Many inventors spend copious amounts of time looking for representation on a contingency basis, but the reality of patent practice is that patent practitioners do not represent inventors on that basis. There are many things that can and will present challenges between the completion of the invention, obtaining a patent and ultimately making money on the invention. When attorneys take cases on a contingency, they do so because there is a virtual guarantee that there will be at least some money recovered or obtained—which is why contingency representation is so popular with personal injury attorneys.
In the innovation world, very few inventions actually make more money than invested in the invention. That doesn’t mean you shouldn’t try to succeed with your invention, and it doesn’t mean that your invention isn’t going to be in the 1 percent to 2 percent of all inventions that make money. But those odds are not good for patent attorneys who would need to work many hours for free based on the hope that at some point in the future a payday may arrive.
A slight variation of the request for contingency representation goes like this: “I want to let you in on my invention and we can be partners.” Randomly going to a patent practitioner asking for contingency representation, or for a partnership, is going to get you nowhere fast.
4. How to shop around
There is nothing wrong with shopping around to find the right patent attorney or patent agent. But be careful how you do it, or you risk alienating competent, experienced patent attorneys.
Everyone has a budget, so it is hardly a shock to learn that independent inventors must keep costs reasonable. Patent attorneys and patent agents should be able to tell you roughly how much it will cost through filing a patent application with relatively close precision after learning a little about your invention. (For some ballpark information, see The Cost of Obtaining a Patent in the US on IPWatchdog.com.)
After you’ve practiced long enough, you know about how long it will take to provide the kind of information required in an appropriately detailed patent application. So it is reasonable to ask early in the process about costs, because if the cost is too much for a particular budget it is a waste of everyone’s time.
However, I’ve been put off when I get an email, letter or message via LinkedIn from a prospective client who asks me to bid on a project. Competent, qualified patent attorneys are going to determine how much work legitimately needs to be done and will give you a fair and reasonable quote. If there are legitimate ways to pursue a more austere path, those can be discussed, but you must realize you are never going to pay for a Kia and receive a Lamborghini. The only way to keep costs low in the patent world is to do less work, which can be a recipe for disaster. Inventors must be mindful that a race to the bottom for the lowest-cost provider guarantees inferior quality.
Then there’s the request for a bulk discount. It seems many inventors have been told, or have independently surmised, that if they tell a patent attorney or patent agent they have 10 or 20 patent applications ready to go in the near future, that will get them a discount on the first patent application. Like all industries, bulk work does receive bulk discount pricing—but bulk pricing actually requires bulk work. You cannot give a bulk discount for a single piece of work; inventors who ask for this come across as insincere and send the wrong message every time. They are not taken seriously.
5. Be informed on the process
Let’s return to the theme of preparation. Previously, I referred to preparation in terms of being organized about the information you have on your invention. Now it is important to understand the importance of being informed with respect to patent law and process.
Obviously, you are hiring a patent attorney or patent agent to represent you so you don’t have to do it yourself, but that shouldn’t absolve you of the need to understand what is going on. The more you understand, the better you will be able to participate in important decisions, and the better understanding you will have about the information required. This, in turn, will make it easier for you to provide the best, most relevant information that will ultimately lead to the best product (i.e., patent application and ultimately a patent).
Be realistic. This can come in many forms, from realistically estimating the market size—which many inventors fail to do, immediately turning off knowledgeable industry professionals—to realistically appreciating the differences between the prior art and what the invention contributes. Serious professionals steer clear of inventors who have unrealistic expectations that can never be met.