Your patent attorney is probably a good, well-meaning person who wants to do the right thing, but they have some inherent problems that prevent them from giving you good advice.
The conventional patent attorney has two duties to their clients: a fiduciary relationship and an agency relationship.
In a fiduciary relationship, the attorney is required to give good advice. If the attorney gives bad advice, they can be sued for malpractice. So what do most attorneys do? They make you decide.
Attorneys are taught to explain all the options and make you decide which one is best for you. Have you ever noticed that your attorney is always reluctant to tell you which is the best option? This is because they don’t want to get sued if you have regrets down the line.
The other side benefit of explaining all the options: the attorney gets to bill you for all the time spent explaining all the nuances. (It also makes them look really smart.)
In the agency relationship, the attorney is required to do whatever you want, provided it does not violate the law. If you want a patent on a perpetual motion machine, the attorney must write it up and send it to the patent office – no matter if the invention is completely worthless, and no matter if the attorney knows the patent office will reject it.
Never ask the barber if you need a haircut.
The attorney has an inherent conflict of interest. They need to get paid. It may look like they are selling patents, but they are really selling hours. The more hours they can sell you, the better off they are.
Think about the liability aspects of giving advice to a patent client.
If a client comes with a terrible invention and the patent attorney knows it, the patent attorney may suggest that they file a patent application anyway. If the attorney is wrong and the client sues because of the bad advice, the attorney is liable for the cost of getting a patent. The US average cost for a patent is about $60K, which is well within the attorney’s malpractice insurance coverage.
If a client comes with an invention and the attorney says do NOT get a patent, and it turns out that the advice was wrong, what is the liability exposure? The client could sue the attorney for all their lost profits – in every country of the world – for the next 17 years.
The attorney’s exposure to bad advice in this case is absolutely unbounded.
This is one reason why BlueIron does a lease-back arrangement. With this arrangement, we eliminate the conflict of interest and put BlueIron’s objective exactly aligned with yours.