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Patent Law and disclosing my idea to a patent attorney

Davis, CA |

I want to contact established companies with my ideas and drawings to improve their existing products. Is it possible that if I disclose my ideas first to a patent attorney and he thinks that my ideas are practical and marketable that he would represent me on contingency-basis and if he does not take my case, how do I know that the patent attorney would not disclose my ideas? I can start with some of my ideas that are simple and straight forward. And in case of the simpler ideas, if my only venue is non-contingent-fee attorney, what would the fees be and can I pay an upfront retainer then make monthly payments?

In the past, I had several ideas that I kept locked in a drawer only to see these ideas applied to products in the stores and that have been selling very well. I guess someone else had the same ideas but went forward with it as I waited. Some of my ideas were so straight forward and simple to the extent that I would doubt myself and would ask myself how come no one thought of it before and hence I thought that something was wrong with my ideas. Years later, I would find my ideas applied to existing products and making millions. I can give specific examples. And I if hire a patent attorney, does she have to be in Northern California where I am, or can he be in any other state since patent law is a federal law and we can easily communicate via email, Skype, mail, etc.? I heard about the "angels" who would fund ideas like mine, but I would not ask neither would I ever accept favors from anyone no matter how nice and well-indented they are. I can only accept business deals with an investor.

Attorney Answers 7


  1. Jerry hosier used to take cases on contingent fee. That is kind of rare.


  2. You concern about confidentiality is valid but you should know that a patent attorney, registered before the USPTO, is duty bound to keep confidentiality. If you feel it necessary, you can request the attorney to sign a confidentiality agreement; I have signed a few for clients that felt more comfortable.
    You need more that an idea to be protected, you need an invention. That means your idea has to be reduced to a practical, novel and non-obvious invention, and that is entitled to confidentiality and protection.
    I do not know any patent attorney that drafts patent applications on a contingency basis.

    USPTO Registered Patent Attorney, Master of Intellectual Property law, MBA I am neither your attorney, nor my answers or comments in AVVO.com create an attorney-client relationship with you. You may accept or disregard my free advice in AVVO.com at your own risk. I am a Patent Attorney, admitted to the USPTO and to the Florida Bar.


  3. A lawyer is bound by the professional obligation of loyalty to the client and cannot divulge client secrets to anyone without the client's permission. What you want to do is ensure that you enter into an engagement with an attorney before you divulge the details of your submject matter.

    Most attorneys are flexible with pay arrangements, but an advance would likely be necessary to ensure you're getting a good attorney.

    Consider hiring a local patent attorney as you'll get better attention, face-to-face meetings, and someone in the same time zone. However, anyone that is registered before the USPTO can prosecute your patents.

    Angels are investors. Be careful with the alignment with investors, even if they are bona fide investors.

    Good luck.


  4. As mentioned previously, it is unlikely a patent attorney would represent you on a contingency basis although you can ask. All attorneys are bound by a duty of confidentiality to prospective clients, which includes the duty not to disclose their confidentiality to others or to use their confidential information for the lawyer's own benefit. A violation of that duty would be very serious. No reputable lawyer is in the business of stealing his or her clients' ideas.

    Payment arrangements are entirely between yourself and your chosen attorney. No doubt some would allow monthly payments, at least in part. Fees can vary widely, but if all you want is a good provisional patent application and/or a patentability search, that should run you significantly less than a full nonprovisional patent application which might run you $5,000-$10,000 for most inventions and most attorneys.

    You are right that it is federal law and you can pick a U.S. patent attorney located anywhere. More than half my clients are located out of state and I am sure the same is true for others.


  5. Patent attorneys simply don't disclose client inventions without approval. We have an implied secrecy agreement that is more restrictive than any you would propose we sign. It comes from our state licensing board, which in most states is the Supreme Court of the state. If we get caught violating that, we get disbarred. We are also licensed by the US Patent & TM Office and if we get caught stealing a client invention we get disbarred. Rest assured, no patent attorney is going to risk his career over your invention.

    No patent attorney will take your invention on a contingent fee unless it is a patented invention with several million dollars worth of infringement occurring and near certain liability with a deep pocket defendant. You can forget trying to get a patent prosecution done on contingency. It just doesn't happen. There are too many paying clients for us to have to do that.

    As to what typical fees are, I have mine posted and they are fairly typical. See www.burdlaw.com/usipfees.htm. Upfront retainers and monthly payments are reasonably common. I do them, and many others do, in appropriate cases. However, most of us will not actually file the application until you have paid in full for the filing. We do, however, try to tailor the work to the fit your budget and recommend the most bang for your dollars. Even the biggest companies try to get the most for their patent legal expenditures, so we are used to fee discussions. Don't be bashful about discussing fees with us. We won't be bashful discussing them with you, particularly if you don't pay as agreed.

    You sound scared to see a patent attorney. That is unjustified. Patent attorneys are nearly always very helpful, friendly and courteous. We do it because we like inventors. There is never a reason to be intimidated by the prospect of meeting a patent attorney. And, remember who works for who when you see your patent attorney, Boss. Get it? Good, then get to your patent attorney and get going on these great inventions you have. Any patent attorney anywhere in the country can do your work, as it is Federal law. If we need local help, we know how and where to get it. The most important thing is to feel comfortable with your attorney so you trust him or her with your secrets as you must. You will be pleasantly surprised at how easy the process really is when you use a good patent attorney. But it will not be cheap. Good work never is. And, in this as with most things, it takes money to make money. As one of my farmer/inventor clients says: You can't harvest if you can't plant, and you can't plant if you no seed money. In patents, add to that you can't effectively patent without a patent attorney unless you have years of time to invest learning patent law like we patent attorneys have done to learn our trade.

    So far, this is free to you. Until you pay a fee, I am not your lawyer and you are not my client, so you take any free advice at your sole risk. I am licensed in IL, MO, TX and am a Reg. Pat. Atty. so advice in any other jurisdiction is general advice and should be confirmed with an attorney licensed in that jurisdiction.


  6. You have gotten some really good responses. But further to your concern about confidentiality... know that no amount of paperwork or assurances will ever keep a bad person from being that bad person. Just like no amount of issued patents or registered trademarks will magically prevent everyone from infringing your intellectual property. All of these things are tools for you to use in the unfortunate event that someone does wrong you; they provide you recourse (and hopefully some deterrence and piece of mind). But at some point, you have to bite the bullet and trust the system, your attorney being part of that system.

    Best of Luck!

    Legal disclaimer: This answer is not legal advice, but is for informational purposes only. My answer to your question does not create an attorney-client relationship between us. Please contact a licensed attorney in your area for competent legal advice.


  7. If you want to have a chance to make money, your chances are increased when you FINISH THE INVENTION and get beyond the idea stage.

    Take a look the critical timing article from MECHANICAL ENGINEERING MAGAZINE which is linked in the library: http://patentax.com/library/

    Finishing the invention to the extent that you know the costs and factors of production takes a good deal of guessing out of the invention process. It lets YOU know what your invention is worth and enables you to justify your demands for more money from licensees.

    Confidentiality is typically covered by the attorney-client privilege. Of greater concern is a disclosure to someone who has access to their own manufacturing facility.

    Please remember to designate your question's BEST ANSWER.

    Curt Harrington
    (562) 594-9784
    http://patentax.com/curt/index.html

    Curt Harrington Patent & Tax Law Attorney Certified Tax Specialist by the California Board of Legal Specialization PATENTAX.COM This communication is general information and not legal advice, and does not create an attorney-client relationship. This communication should not be relied upon as any type of legal advice. Please note that no attorney-client relationship exists between the sender and the recipient of this message in the absence of either (1) a signed fee contract and (2) remission of an agreed-upon retainer. Absent such an agreement and retainer, I am not engaged by you as an attorney, nor is any other member of my law firm.

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