Independent inventors are terrifying for patent attorneys.
As I began to learn patent law 20+ years ago, a senior attorney described independent inventors as “walking malpractice lawsuits”. His way of handing independent inventors was to not tell them anything, and for the client to decide the best course of action.
The client had to become “educated” on patent law, and he was all too eager to “help” by explaining all the elements of patents: provisional patents, non-provisional patents, searches, etc. Of course, he did this at $400/hr, but that is another topic.
The client would finally settle on a course of action, and the attorney would do it.
Often this course of action was solely to pad the pocket of the attorney, but because the client made the decision, the attorney would not be liable if the client came back and sued. The attorney would always memorialize the decision in a letter to the client with the sole intent of pulling the letter out when the lawsuit arrived.
The specter of a malpractice suit was always hanging in the air because the patent attorney was the only person left after a startup went bust (which is a 90%+ chance). The patent attorney was paid early and paid significantly – and the patent attorney was still in contact with the inventor.
Because the patent attorneys were the only ones with money, they are more likely to be sued when the entrepreneur inevitably augers in.
What does this mean for the client? The client is usually the worst person to be making any decision about protecting their invention. Even inventors with 100 or more patents do not understand patent enforcement, buying and selling patents, negotiating licensing agreements with patents, or the dark, mysterious world of patents.
The attorney *should* be the person who provides this expertise. But due to the liability concerns, the attorney avoids giving any advice – which is the real thing the client wants and needs.
I have seen attorneys who are skillful at steering the client to a particular course of action. If the attorney feels like the client may not have much money, they will often sell the client a “cheap” provisional patent application so that they can come back a year later and sell them a non-provisional application. The client doesn’t realize that they have overpaid sometimes $3-5K for the services and often lose their foreign rights, but the scam is that the attorney can milk the clients based on the “client’s” decisions to get certain services – not the attorney’s advice.