QUESTION
My attorney is going to do a patentability & infringement risk analysis on my invention, are our interests aligned?
Asked on Jun 28th, 2012 on Patents - Florida
More details to this question:
My lawyer is offering to do a patentability & infringement risk analysis for $1,750 on two similar patents that I found so I can determine if I can actually potentially PRACTICE a utility patent without litigation risk. He also would obviously want to do the utility patent if it is patentable, so what''s to stop him from saying "yes its patentable and no there''s no infringement risk" just to get me to go for patent? He stands to extract another $10,000 from me...is he liable if by acting on his advice I get sued for infringement by practicing my patent? Just want to know this before I dump $1,750 for this whole analysis. Would be money wasted if our interests are not aligned and his analysis would be biased...
1 ANSWER
Sports Attorney serving Sunrise, FL
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Nancy J. Flint Attorney at Law, P.A.
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No one of course can determine the patent lawyer's motives. However, the patent lawyer is bound by rules of ethics both in the state bar in which he/she practices and the United States Patent & Trademark Office which prevent him/her from representing you if there is a conflict of interest. If you believe that the lawyer had a conflict of interest and should not have undertaken your representation, then you can complain to the appropriate authority. If you are that concerned, have one lawyer perform the patentability search and analysis, then get a different attorney to give you an opinion on the quality of the analysis, then have another attorney draft the application. Keep in mind that a patentability opinion is just that - an opinion - so there is no "right" or "wrong" answer unless something extremely close to your invention shows up in the search. Only the USPTO can ultimately determine if your invention is patentable.
Answered on Jul 02nd, 2012 at 3:04 PM