Your Patent Attorney Is NOT Giving Business Advice
Are you getting a list of options or a strategy that aligns with your business? Is that “strategy” more tailored to the Law Firm’s billing or your success?
Most inventors think that hiring a patent attorney means they’re protected. That’s a mistake.
Patent attorneys are trained to give you every possible option. Want a provisional? Sure. Want to file a PCT? That’s on the table. Want to abandon and refile? Absolutely. They’ll lay out a menu of choices — but they will never tell you which one is the right one for your business.
Why not? Because that’s not how the system works.
They’re not paid to make strategic recommendations. They’re paid to document your inventions and push the paper through the USPTO. Their ethical obligation is to file what you ask them to file — not to counsel you for what’s in your best financial interest.
See this post on how attorneys don’t live with their mistakes. (“Patent Attorneys Do Not Live with Their Mistakes”)
The Illusion of “Informed Decisions”
Patent attorneys honestly believe that if they give you a list of options — with some boilerplate risk language — they’ve fulfilled their duty. It’s how they shield themselves from liability.
They’ll say:
“Here are twelve ways you can handle this. Each has pros and cons. You decide.”
That feels like professional advice. It’s not.
It’s a legal CYA move. By presenting every option, they’re not committing to anything. They’re avoiding responsibility. Because if things go sideways, they can point back and say, “You were informed. You made the call.”
But let’s be honest: most entrepreneurs don’t know what any of those options actually mean in a business context. That’s why they hired an expert. And instead of advice, they got a menu of choices with endless footnotes.
See: “The ‘Walking Malpractice Suit’” for how fiduciary fear drives this behavior
When I worked for a local patent attorney decades ago, he emphasized never, never, never giving business advice. We were commanded to explain every option in detail (we were billing by the hour), then document whatever they “decided.” The problem was that the client was always asking for advice, not options.
In fact, the whole reason why I took the Patent Bar all those years ago was because that same attorney would never tell me what was best in my situation. I got the menu of choices but never any advice or “counsel.” I was so disappointed that I have been reverse engineering the patent system ever since.
Why Provisional Patents Are the Perfect Example
One of the most common pieces of “advice” is to file a provisional application first. It sounds cheaper and faster. But it’s not strategy — it’s a stalling tactic. And worse, it often costs more in the long run.
Here’s what happens:
- You file a provisional to “hold your place” and stop any examination (when you really need to get examination quickly).
- A year later, you scramble to convert it to a non-provisional.
- Hopefully – from the patent attorney’s standpoint – we find something to change in the patent application.
- You’ve spent money twice – and have weakened your position.
Why was this suggested? Because it doubles the billing. The law firm collects now and again later. From their perspective, that’s two billing events. From yours? It’s a delay that increased cost and complexity – and dramatically weakened your IP position.
See “Provisional Patent Applications Hurt Startups” for a detailed breakdown.
Let’s Be Clear: This Is About Billable Hours
The list of options isn’t about helping you. It’s about giving the law firm flexibility – and deniability.
Suggesting a provisional means they’ll bill you again in 12 months. Will you sell this product in all sorts of foreign countries? File a PCT and enter national stage in 25 countries. More filings. More bills.
This isn’t always malicious. Most patent attorneys genuinely think they’re doing the right thing by explaining “options.” But the structure is set up so that more work = more revenue, and the easiest way to generate more work is to give you more decisions – each leading to another invoice.
Malpractice Liability is Extreme in Patent Law
One of the things I never appreciated when I was an inventor was the huge liability risk that patent attorneys face.
Patent attorneys have malpractice exposure that is far, far greater than any other attorney’s exposure.
If a patent attorney give you business advice, and they are wrong, you sue them for malpractice.
If they say “get a patent” and they are wrong, their exposure is the cost of a patent, maybe $30,000.
If they say “do NOT get a patent” and they are wrong, their exposure is all your lost profits – in every country of the world – for the next 20 years.
This liability exposure is so enormous that virtually all patent attorneys fall back on the practice of explaining all your “options” and making you pick – even when they know the best strategy for you.
In the end, you are hiring a workman to do a job, not a “counselor” who will help you build a valuable business asset.
See “Why Patent Attorneys Tread Very Carefully Around Independent Inventors”
Who’s Responsible for the Outcome? You Are.
When your patent ends up being worthless, the law firm shrugs.
“You made the decision. We just presented the options.”
And technically, they are right. But what you needed was someone who said:
“Given your product, market, and funding stage, here’s the strategy that gives you leverage and minimizes cost.”
You didn’t need a law firm. You needed a partner. And that “partner” is never your patent attorney.
See “You — And Only You — Are Responsible for Your Patent” for further reading.
Buyer’s Remorse
It is heartbreaking to see inventors and entrepreneurs who go through the patent process and being taken advantage of by patent attorneys.
If an entrepreneur says “I want a patent,” the patent attorney takes their money and files a patent application. You may be aware that patent attorneys make more money during the back-and-forth with the patent examiner, not the initial drafting and filing, and the worse the initial invention is (and the worse they make the patent application), the more they get paid to “fix” it later on.
These patents might eventually issue as real, genuine patents, so the entrepreneur attempts to enforce their IP. Sadly, that is when they discover that their IP was not as strong as they assumed.
Their patents get invalidated at the Patent Trial and Appeal Board (PTAB) through the Interpartes Review (IPR) or maybe invalidated in federal district court.
It is then – and only then – that they realize that they were fooled. They did not realize that their patent attorney worked for a law firm and not for them. They did not realize the patent attorney’s “skin in the game” is only to get more billings. They did not realize that cutting corners with bottom-feeder, low cost patent attorneys with “strategies” like provisional patent applications was eviscerating their patent’s value.
They did not realize that they were ultimately responsible and they picked the wrong option from the attorney’s “laundry list” of options. It is heartbreaking to see how the patent bar failed these well-meaning, hard-working inventors.
What Real Patent Strategy Looks Like
Real strategy doesn’t give you a menu. It gives you a recommendation – backed by business logic, not legal boilerplate.
It sounds like this:
- “Never file a provisional. File a utility and get early examination.”
- “The sooner we get feedback from the examination process (such as PCT search report), the better informed we will be about our IP and our strategy.”
- “Have as much examination done as possible before determining which country to enter National Phase.”
- “Design around our own patent to determine how someone can work around it.”
- “Determine the reason why someone bought our product to determine what to cover in our patent.”
- “We do not want to patent an idea just because it is cool, we want a patent that is enforceable and detectable.”
This kind of advice comes from someone who understands your business, your market, your funding environment, and your exit strategy.
But that kind of insight doesn’t come from an attorney billing hourly. It comes from someone who has skin in the game.
See “Investment Grade Patents Need Investment Grade Businesses” for how business alignment matters.
Things are Different From BlueIron’s Perspective
At BlueIron, we don’t get paid to churn filings. We get paid when your patents are valuable.
That changes everything.
We treat patents like financial assets — because they are. We fund them, underwrite them, and manage them like investments. That means every decision — what to file, when to file, what to claim — is driven by business value, not legal tradition.
We say no to bad ideas. We kill unnecessary filings. We design your portfolio to support your actual growth, not just your ego.
If we recommend a strategy, it’s because we’re putting our money behind it.
A Final Word
Patent attorneys aren’t broken. They’re just operating in a system that doesn’t reward strategic thinking. It rewards billing.
So when you get a list of options with no clear guidance, understand what’s really happening:
- It’s legal liability avoidance.
- It’s a path to more billable work.
- And it puts all the risk — and all the responsibility — back on you.
If you want more than that, you need someone aligned with your outcome.
Because a list of options isn’t strategy. It’s abdication.
You deserve better.