To paraphrase the famous quote of Ralph Waldo Emerson, if you build a better mouse-trap the world will make a beaten path to your door. Inventors and entrepreneurs frequently take this quote all too literally, thinking that if they make a better product theirs will sell and make them rich beyond their wildest dreams.
There are, of course, many different reasons why building a better mouse-trap is only the first of many steps on the road to financial freedom. There is no guarantee of financial success given by any patent office in the world. This is true even if you have a strong patent that covers a great product that enjoys robust consumer demand.
But this won’t stop many inventors from attempting to patent some rather peculiar inventions. Chances are that the more peculiar the invention, the more likely the inventor is going to want the patent attorney or patent agent to work for free, or on some kind of contingency basis. If an inventor like this approaches you, even if they seem normal, do yourself a favor and just say NO!
Most inventors despise hearing it, but the truth is that the invention part of the “idea to riches” cycle is the easiest part of the entire process. Most inventors think that patent attorneys and patent agents should jump at the chance to get involved with their brilliant idea for a piece of the action. After all, brilliant ideas don’t grow on trees. Well, that is certainly true, isn’t it!
The invention part of the process is the easiest because it is the only part of the process that can be completely controlled start to finish. Everything else — and I do mean everything else — requires at least the cooperation of one other individual, and sometimes many individuals. The funny thing about “cooperation” is that it isn’t all that cooperative.
When you file a patent application, you need to depend on the fact that you will get a fair examination by a fair Patent Examiner, and even if you get a fair Patent Examiner, they may just look at the law and your invention from a different point of view.
After the invention and patent process, there are all kinds of hurdles to financial success. You need to find a licensee and get the licensee to enter into a favorable enough agreement that money invested will be recouped and there will be at least something left over for profit. After all, why go through the entire process to just break even or lose money? There will be costs associated with filing and obtaining a patent, prototypes and licensing endeavors. The costs do add up over time.
Inventors who have no personal finances invested in the patent process are among the most likely to simply give up when the going gets rough. When things get difficult for them, why not give up and move on to whatever is next? If you as the patent agent or patent attorney took the case on a contingency, then you just lost all the time you invested. Sometimes more. If you can believe it, some inventors not only want to find a patent attorney or agent to represent them for free, but also want the agent or attorney to pay the filing and other fees. Just say NO! No matter how good the idea or invention sounds.
So what is an inventor to do? Being realistic when dealing with a patent attorney or agent can go a long way. That also means you need to engage the patent attorney in a business-responsible way, treating them as if they are a professional.
If you are involved in the practice of patent law for very long, you will know that there are all kinds of inappropriate ways that inventors present, beyond the usual, unrealistic “represent me on contingency because my invention is the best thing ever.”
Over the years, I have transitioned from taking initial inquiries via telephone to requiring all initial contact to be via e-mail. When I took phone calls, I noticed that virtually none of the callers would sign up as clients, but a large percentage of those who contacted me via e-mail would.
Digging deeper, I found that those who contacted me via e-mail first were busy people themselves, with lives and jobs. They did their research, knew who I was and wanted to talk to me about working for them. They were different because they were willing to set up an appointment via telephone and didn’t assume a patent attorney or agent would drop everything to answer their endless stream of questions.
So other than the inventor wanting you to take a case on a contingency basis, how can you tell if they are likely serious or just fishing for free information and unlikely to ever become a client? The following are the red flags I have observed over the years:
- Those who immediately ask for a free consultation before they decide whether to move forward with representation are almost certainly never going to become clients. The flag here is “free consultation.”
- Those who say: “I have a quick question,” or those who say something like “I have just a simple question for you…” will present a question that is neither quick nor simple, yet they will not be interested in paying you for your time.
- Those who say “all I want to know is whether my invention is patentable” don’t understand the process or what they are about to get into, or what you do. Proceed cautiously.
- Those who ask you to sign a confidentiality agreement are not sophisticated. This should be a yellow flag, not a red flag. It will be OK to proceed if they accept the explanation that attorneys must keep information confidential and a confidentiality agreement is unnecessary and actually provide less protection than the attorney-client privilege. If they come back with any story about a guy they knew having his invention stolen by another patent attorney, well you should know what to do. RUN!
- Those who initially demand to speak with a patent attorney or patent agent without first speaking with a secretary or paralegal to get basic answers to their process questions should be avoided.