This article was written for the United Inventors Association Newsletter and is reprinted here with permission. Sign up to receive the free UIA weekly newsletter.
Over the years I have received quite a number of e-mail inquiries and telephone calls from inventors who are looking for information and advice, perhaps even representation. Typically, the initial communication starts off with the inventor saying that they have an invention that they know will be well received in the market and that they are looking for a patent attorney who can represent them. They request that a patent attorney call them as soon as possible to move forward. This is a red flag for a patent attorney and understanding why will help you become a more sophisticated consumer of legal services.
First, it is critical to understand that every inventor thinks that their invention is going to be well received in the market, but in my experience inventors who state this in the initial e-mail or early during an initial telephone call are heading in a direction of wanting to partner with the patent attorney. I have the invention, which is brilliant, and you can do the legal work for free and pay all the fees due to the United States Patent and Trademark Office. Inventors think this is a great deal for the patent attorney, but the truth is that no patent attorney I know who has ever attempted such an engagement has ever made a dime. It is not a good deal for the patent attorney, and why would a patent attorney want to work for free and advance costs when you don’t believe enough in your invention to do the same? This is starting off on the wrong foot and if it is not your intention to be seeking free legal work, which in the patent arena is as common as a unicorn or Bigfoot, then you need to understand the perspective of the patent attorney.
Here are some basic rules and truths:
1. Every patent attorney gets these kinds of e-mails and telephone calls every day, sometimes multiple times in the same day. If I were to call everyone back who wanted to talk to me I would have no time to do any work and would go bankrupt.. I am not unique though. All patent attorneys are barraged with these types of questions on a daily basis. It is unrealistic to expect a patent attorney to pick up the phone and call you immediately, perhaps ever. If you want to do business with a professional you need to be and act professional. Set up an appointment, speak with an assistant and go through proper channels. Those who expect deviation from proper business protocol are avoided by serious professionals and typically are unwilling to pay for services and want to play “Let’s Make a Deal” instead.
2. Those who ask for a telephone call or a free telephone consultation before deciding whether they want you to represent them almost never turn into clients. If this were not the case, patent attorneys would be far more willing to take these calls. Over the last 10 years running IPWatchdog.com, I can count on one hand, perhaps one finger, the number of folks who presented with what I will call interview questions who turned into paying clients.
3. While it might seem like an easy, quick question to you, the truth is that it is not an easy or quick question. There are simply no easy, quick questions that can be asked in the patent and invention space. In fact, there is virtually nothing a patent attorney can discuss without knowing a good deal about your invention and having conducted a patent search and associated patentability analysis. I get folks saying “I just want to know if it is patentable.” Of course you do, but that cannot be answered without research and time spent, which costs money. Whether the attorney says yes or no they open themselves up to liability either way, so research and proper consideration is required.
4. Patent attorneys are very busy and have a lot of work from clients who pay them in advance for doing work and answering questions. It is unrealistic to expect that a patent attorney would willingly put work aside that pays in order to talk to someone for free or do free legal work. Patent attorneys sell time, so time is money. Patent attorneys are not leveraged on the work of others, and don’t have a product that can be sold on eBay while they sleep. So expecting free time is a big turn off.
5. Patent attorneys work in different ways, using a variety of processes. You cannot reasonably expect a patent attorney to change to meet your demands. I get people telling me that they do not want to communicate via e-mail, they do not use fax machines and they prefer telephone and written correspondence. My response is to say “that is fine, but I do not want to work with you and won’t work with you.” By layering on demands you can make working with you take more time, cost more and lead to inefficiencies and needless duplication of work. That costs extra, complicates matters and leads to errors. Selecting a patent attorney is very personal and working with someone who is on the same page with you is very important. Pick someone who you match well with, but do realize some demands will close doors with some, which may not be in your best interest.
This may seem harsh, but it is critically important for inventors to understand the industry and how it works if they want to have any chance at obtaining competent legal assistance. Inventors can be difficult to work with, and I say that in a loving way knowing that I am an inventor, and I am often difficult myself. The same thing that makes us successful can at times be a real detriment. An invention is so important to us and sometimes we are unreasonable, over protective, defensive and fearful. This almost sounds like a parent, and that is indeed the mentality. I understand the over protective parent mentality, as does everyone in the industry. Having said this, we all have horror stories about inventors who became the client equivalent of a Bride-zilla. So if you show Inventor-zilla tendencies early many reputable professionals who don’t want the drama may shy away.
It is absolutely critical to understand, particularly now during a recession, that patent attorneys have a ton of work and typically do not need more clients. A recession is boom times for virtually all patent attorneys. Everyone is trying to succeed on their own, which is a uniquely American way to view life. So most patent attorneys are not desperate for work so they don’t need and don’t want to deal with an inventor who approximates a NFL diva Wide Receiver. The last thing most of us want is the inventor equivalent of Terrell Owens. He talks to much, destroys team chemistry and he drops WAY to many balls thrown his direction. Yes, he is a great talent, but that only goes so far. If you view a patent attorney as a team player who is there to help and doesn’t want to be taken advantage of you are likely to start off things on the right foot and have a good working relationship, which will hopefully be profitable and rewarding for everyone involved.
Join the Discussion
7 comments so far.
Rphael ShenemanOctober 22, 2009 01:55 pm
It is an intersting view point. From where I stand as a client I see a lack of a reasonable investment from an attorney to take a call is about 100 pound foolish. In most industries, it is called business development and when you don’t do it something terrible happens, nothing!
If the practice is so successful then I fully understand the stance. However; it also means that the practice has reached capacity and will almost certainly find a hard time to scale.
Gene QuinnOctober 20, 2009 06:31 pm
You are unnecessarily eliminating highly qualified attorneys. Why you would be willing to spend $200,000 for legal services and expect a free telephone consultation is beyond me. That seems to be the definition of penny wise and pound foolish.
There are appropriate business paths to follow, and those who do not want to follow them are free to do whatever they like, including going to an attorney who has enough free time to speak with whoever calls. In my practice we have a process whereby calls are initially handled by staff and if they prove to be serious enough then and only then does an attorney get involved. There is simply no other way for me to handle the volume of inquiries I get. If I talked to everyone who called I would be on the phone all day long and get nothing done, and also likely not have any new clients to show for the effort. Chatting with an attorney and being comfortable is certainly fine, but demanding to speak with an attorney before you have even indicated what you are calling about and whether likely fee is within reach is not appropriate.
Good luck to you Rphael.
Rphael ShenemanOctober 20, 2009 06:18 pm
Speaking of myself as a client who paid in one year in excess of $200,000 of several attorney and legal fees. I have never worked with an attorney without first conducting a free telephone consultation. At the end of the day, you only work with someone you like and trust, this is almost hard to come by with attorney.
Gene QuinnOctober 12, 2009 10:35 am
The market is VERY different for entry-level patent attorneys vs. those with even 1 year of experience. Once you get 1 to 3 years of experience moving from firm to firm becomes exceptionally easy. The question is how do you get 1 to 3 years of experience?
During recessions there is sometimes a reconfiguration of the patent market, and in this recession it seems to be worse then in many past recessions, likely because it has been so long and so deep. The big firms have been hit hardest, but not all big firms. Many big firms are booming even charging $500 to $1,000 an hour, but those that are booming are top of the line, second to none in terms of quality. Many big firms are just big and priced accordingly. This is not to say they are bad, but for many firms clients are seeing that they do not get $300 to $500 an hour extra and are fleeing to smaller firms located where overhead is not so high. So if I could give advice to those looking for jobs it would be to look at small firms to mid-size firms. That is where the growth typically is during recessions and in this recession the growth seems to be quite enormous in that space.
I will reach out to you via e-mail for more.
DaleOctober 12, 2009 01:28 am
Gene, I noticed you said the following:
“It is absolutely critical to understand, particularly now during a recession, that patent attorneys have a ton of work and typically do not need more clients. A recession is boom times for virtually all patent attorneys.”
If it’s such a boom time for patent attorneys, why do I never seem to see any job postings for entry-level patent attorneys (i.e., patent attorneys who are registered, but have never worked in prosecution)? Is the market for entry-level patent attorneys/agents that different from the market for experienced people?
FYI: I’m licensed in Kentucky, have a chemical background (BS and MS in ChemE) and passed the USPTO exam earlier this year, and would like to find a position in prosecution. I’m open to relocating, since I’m well aware that Kentucky is far from the center of the patent universe. Where do I start?
Gene QuinnOctober 5, 2009 09:55 pm
I do not speak on behalf of you, obviously. It is also obvious that you do not get as many inquiries as I do because if I spoke with everyone who called or e-mailed who was looking for information I would talk to inventors for free all day long. I have a staff and we follow up with inventors and provide them with information, even when they are clearly not going to turn into clients. I also have spent thousands of hours creating a resource here at IPWatchdog.com. If you choose to speak with all inventors and provide them with a free consultation that is very good for you, and I am glad there are patent attorneys out there like you to provide such a valuable, yet time intensive resource.
If you would like I would be happy to pass your telephone number and e-mail address along to those who call me and e-mail me looking for a free consultation. In years past I would talk to those folks to the greatest extent possible, but almost universally these folks would never turn into clients. Those who initiate contact via my contact form are far more serious and convert at a very high level. So simply put, I do not have the time to provide free consultations. Between my writing and doing legal work for paying clients I just do not have the time available to spend hours a day chatting with inventors for free.
I will only pick one bone substantively with what you write. I personally think that one of the biggest problems with attorneys of all types is that they share your view regarding never having enough clients. When you say that you will “never take the mindset that [you] do not need more clients” that sounds extraordinarily typical of most attorneys. How any attorney can take such a view is beyond me. Every attorney I know will at least from time to time not be in a position to take on additional work without compromising the quality of the work they are doing, or force clients to unreasonably wait for services. That is not my style. I take only the work we can do in a reasonable time, and at a high quality. I personally find that to be most fair to the clients and in keeping with my own morals/philosophy. I have no trouble telling clients when we are at capacity and suggesting that they consider working with another attorney.
Perhaps I am overreacting to what you write, and perhaps you are never near capacity and that is why you have time to speak with inventors personally. In my experience there is no such thing as a 10 minute phone call with inventors. I don’t know what useful can be said in 10 minutes given the nature of advice needing to be personal and specific, particularly in our area of expertise where one-size-fits-all advice is simply not possible.
In any event, if you can confirm for me your interest I will instruct my staff to direct those looking for a free consultation to you.
Sandra M. Sovinski, Esq.October 5, 2009 08:45 pm
As a patent attorney in practice for almost 10 years, I am compelled to respond to this article. I whole-heartedly disagree with Mr. Quinn’s characterization of patent attorneys. I regularly and willingly speak, for free, by telephone and in no-charge initial consultations, and have engaged countless clients, both corporate and individual, and have continued to represent such clients for years, with growing porfolios. I welcome prospective client questioning, and, in fact, encourage them. Moreover, I find it to be rewarding to have the opportunity to assist those seeking information, whether or not they become a client, in much the same way as personal and professional reward is derived from speaking to local entrepreneurial groups, incubators, and other organizations.
Additionally, and also contrary to Mr. Quinn, I believe and direct my practice to be receptive to my clients’ preferences, such as regarding communication. That is, while I may prefer a particular mode, I absolutely honor the preferences of my clients. Efficiency is not a one way street; what may be efficient for me may not be so for my client.
Lastly, no matter the number of clients and volume of work that I have, I will never take the mindset that I do not need more clients. Quite the opposite. This is not coming from someone fresh from law school, but in view of years of experience, and my perspective is not mine alone, but is shared by the majority of patent attorneys that I have practiced along side for the past decade.
I am not doing my clients a favor; they are granting me an opportunity to serve their legal needs. The day that I believe my time is too valuable to take ten minutes to have a conversation with an inventor, that I am somehow superior to someone who could possess the exclusive rights to an incredible innovation, but for a few dollars, is the day that I should stop practicing.
Mr. Quinn, please do not speak on behalf of this patent attorney.