Patent Attorney Liability
This story is not about only having a hammer and everything looks like a nail. There is more to the story.
Think about the patent attorney who is meeting a new client. The client is unsure about whether or not to get a patent on their idea. The patent attorney suggests trying to get a patent. Of course, the attorney says, there is a chance that the patent may not be granted or that it may be narrow, but this is how you get protected.
Will the patent attorney *ever* counsel you not to get a patent? Highly unlikely.
Patents are strange in that they create a huge amount of value, but also in that they have strict time limits in getting this done. If you are late, your patent may be invalid, and if someone else files before you do, you will lose your rights.
The patent attorney will *always* counsel you to get a patent as quickly as possible to prevent others from getting the rights first – and this has been engrained into the attorney’s training over and over, and it is a big potential malpractice claim if the attorney delays getting the patent done.
So think about the scenario where the patent attorney counsels the client *not* to get a patent. What happens if the product shows up in WalMart five years later? The client is angry and sues the attorney because of the attorney’s supposed poor advice. The attorney is responsible for all the client’s potential profits that they “could have” made from their invention – in every country of the world – for the next twenty years.
The amount of money that the client can sue for is in the tens or hundreds of millions of dollars, all because the attorney counseled not to get a patent. Why would any patent attorney expose themselves to such huge liability?
The reason why the patent attorney always suggests getting a patent is not just because that is their stock in trade, but because of the enormous liability that they are personally exposed to if they do not always suggest getting a patent.