Why Patent Attorneys Don’t Work on Contingency

By Gene Quinn
July 8, 2017

Lately I have been getting a lot of inquiries from inventors who are interested in contingency fee representation. This happens every so often, which leads me to dust off this article and provide this “tough love” article that may come across as a bit of a lecture. I have always believed that the overwhelming majority of inventors want to hear it straight and are looking for a road-map to get from point A to point B.  The thing I preach all the time, and the theme of this article, is understanding the industry.  The more you understand about what you should do, when you should do it and the economic realities facing the various players you will come in contact with the better off you will be to safely and successfully navigate the difficult waters of going from invention to money.

The first thing to understand is that there is no such thing as contingency representation for purpose of preparing, filing and ultimately obtaining a patent. Patent attorneys and patent agents simply do not take contingency clients when the matter is patent procurement.

I’m sure the reason that many inventors inquire about contingency fee representation for their patent work is because they have seen those TV commercials where an attorney talks about taking cases on contingency and not getting paid unless you get paid a recovery.  Who hasn’t seen those commercials? If you look carefully at these commercials, however, they are universally from “injury attorneys,” not from attorneys that do transactional work.  The unfortunate aspect of these widespread commercials is that they have lead many, including inventors, to believe that all attorneys work on a contingency basis regardless of the work to be provided.  That is simply not true.


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Having spent time as a litigator at the beginning of my career I know exactly what goes into taking a case on a contingency basis. An attorney only takes cases on a contingency basis when the attorneys knows beyond a shadow of any doubt that there WILL be money ACTUALLY recovered. That is why it is perfect for personal injury attorneys. They can tell with great certainty, if they are being honest, if money will be recovered. So you need to be 100% sure when you take the case that money will be obtained because, as it turns out cases, can and do take on a life of their own and even when you are 100% certain at the outset you make mistakes. If you are not 100% certain at the beginning you pretty much never recover anything ever.

Most inventors hate hearing this, but inventing is the easiest part of the entire process. This seemingly outrageous statement is perfectly accurate because inventing is the only part of the process that can be completely controlled. Once the invention is complete control shifts away from the inventor to others, like patent examiners and consumers, market forces take effect and even good inventions wind up being commercial failures.

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. The patent process cannot be controlled because ultimately you have a patent examiner you need to please, but you have complete ability to define the invention and guide the process to a positive outcome, which can be achieved in a high percentage of cases if the attorney is familiar with the technology and the client is willing to pay enough to do the work actually required. But as is the case in virtually all aspects of life there are Patent Examiners that do not play by the rules, and there is no accounting for the Patent Examiner with an honestly held difference of opinion. Sometimes, perhaps frequently, inventors give up during the patent examination process not because they couldn’t realistically obtain anything but because obtaining a patent becomes too difficult, too time consuming and no longer worth the effort.

After the invention and patent process there are all kinds of hurdles to money showing up.  You need to find a licensee and get the licensee to part with money, or you need to build the invention or implement the invention and wait for consumers to start buying.  See Getting Your Invention to Market: Licensing vs. Manufacturing. When it comes time to market your invention you may be told you have exactly what people are looking for, but then wind up getting beaten out by an improvement; this happened to my uncle who was a patented inventor.  There are also costs all along the way, and even if there is an extremely high likelihood the invention will be successful the time horizon to money (i.e., the time it takes for the first dollar of profit) is too far in the future and too speculative for any contingency representation agreement to make sense at all for what is a lot of work required to obtain a patent.

Aside from the fact that there are a great many things that can (and will) go wrong on the way from invention to money, inventors who have no skin in the game typically fold like a pop-tent the first time there is a glitch.  Yes, I do have experience with this in the patent space, foolishly having tried at times earlier in my career to take work on a contingency basis.  I think many patent attorneys and patent agents have foolishly tried to take contingency work, perhaps for a family member or friend.  I have never made a dime and I know of no patent attorney or patent agent who has ever made a dime on a contingency deal.  So you simply cannot realistically expect a patent attorney or patent agent to represent you with respect to your patent work on a contingency basis.

This rationale frequently doesn’t get through or understood because most inventors will think that this all makes sense for the other inventor, but not for them because their invention is going to be worth billions of dollars and everyone is going to want it.  This is typically the inventor who will say, “my invention is better than sliced bread, everyone will want it, and I am willing to let you in on this if you just do the patent work for free.  You will be rich!”

While here allow me to briefly caution inventors about exaggerating the market. As you are spending time figuring out whether there is a market and how large the market is don’t make the mistake many inventors make, which is to believe that “virtually everyone in America will need one and that means 308 million sales!” No product or service is ever going to be purchased by everyone. Remember only about one-third of America watches the Super Bowl, about half of the people in the U.S. do not file or are not counted on a federal income tax filing, only 79% of Americans know that the earth revolves around the sun and only 76% of Americans know that the nation achieved its independence from the England/Great Britain/UK. See Gallup poll. So 100% is never achievable. If you are serious about determining the size of the market you will go to the U.S. Census Bureau and dig through the data. I also strongly recommend reading Plausibly estimating the market for your invention.

Not to put too fine a point on it, but patent attorneys and patent agents don’t want to be “let in on” your invention, we want to work and get paid, just like you do.  Everyone thinks their invention is the next grand slam homerun, and that is great.  If you don’t have confidence you likely won’t succeed, but expecting to find reputable professionals who are experienced and talented who will work for free, which is what you are asking, is unrealistic.  Even crazy simple patent applications can take 20 hours to draft properly, and something of modest complexity, like a kitchen gadget, can take an entire week to do properly if it really is something that has homerun potential — particularly now in the PTAB era.  How many people can take half a week, or a full week off to work for free in hopes of making money at some yet to be determined distant point in time in the future?

Over my career I have been amazed at how many people are creative in one manner or another. There are truly wonderful entrepreneurs and highly creative inventors out there, more so than most people would imagine. Successful inventors and entrepreneurs hire competent patent professionals and pay them so that they devote the necessary time to do a good job. It is at least somewhat common, however, for inventors to start down the patent path, perhaps with a patent search and provisional patent application filing, and then go out seeking investors. There are investors who will invest because that is their business. Patent attorneys and patent agents, on the other hand, are in the business of doing work for a fee. So asking a patent attorney or patent agent to invest in hopes of recovery is asking someone who is in the fee for service business to buy into your idea without hardly knowing you and without knowing whether you will continue to follow through as life challenges and business challenges mount.

The moral of the story here is this: inventors who spend a lot of time and energy searching out patent attorneys and patent agents who will work on a contingency basis are wasting their time. The time spent looking for contingency representation, which is the industry equivalent of a unicorn, could be better spent in any number of ways, including working over-time or picking up a second job to make more money so you can pursue at least the critical first steps (i.e., patent search and provisional patent application) before going out to look for help developing the invention and finding investors.

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and founder of IPWatchdog.com. Gene is also a principal lecturer in the PLI Patent Bar Review Course and an attorney with Widerman Malek. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 125 Comments comments. Join the discussion.

  1. angry dude July 8, 2017 12:52 pm

    Why ?

    I believe the answer is very simple: patent attorneys do not believe themselves that (in the current anti-patent environment) their independent inventor/small biz clients can successfully monetize their patents even if invention is groundbreaking and all claims are granted.
    Otherwise we would see a lot of contingency patent prosecution representation law firms – this is capitalism after all, profits rule – delayed pay of 1 mil (even with 70% probability) is much better than immediate check for 25K
    Sad

  2. Tesia Thomas July 8, 2017 2:00 pm

    I think Gene’s amazing as evidenced by this blog.
    But I agree with @angrydude.

    No matter what you have, patent professionals know best how fickle the laws are.

    Think about the IP brokers. They’re mostly going away due to the IP laws.
    Who cares if your tech is amazing when you can hardly protect it.

    Gene, you even said it yourself through this blog… PTAB applicants, efficient infringers, target the most lucrative patents.

    Inventors don’t even want to invest in their own inventions!! (in lieu of the law)
    We know we can hardly expect a patent attorney to do so.

    Pretty soon no inventor will be paying patent attorneys anything for any tech.

    Without inventors there’s no need for patent attorneys.
    Patents are useless in the US.

  3. Tesia Thomas July 8, 2017 2:29 pm

    The inventors of ‘worthless’ patents still write thousand dollar checks for patent attorneys.
    But that’s because they see and hear the stories of great inventions changing the world and dream.
    Once people realize that every US patent is worthless (a market force) then they’ll stop draining their savings on IP.

    I would even go so far as to say that any patent attorneys who take work/payment for IP they know will be worthless should be disbarred.

    They are part of the problem as much as efficient infringers because they’re taking money knowing (if they do know) the laws are ridiculous and terrible.
    It’s akin to medical professionals billing you for medications that you shouldn’t have been prescribed just because writing the prescription means billing for the prescription. As professionals, everyone should educate their clients.

    If IP professionals take software patent work knowing the perils of Alice and 101 actions then they are part of the problem.

    This whole thing should work both ways on the sides of the extremes.
    Patent attorneys should only be paid for inventions that patent laws will reasonably be believed to protect.
    I’m not saying that attorneys need to become their client’s business consultants. I’m saying that if I want to patent a wooden pencil like what I just bought in a store (obviously not patentable invention) or software (in lieu of Alice) then no attorney should take the work.

    Bad IP laws = hurt inventors and hurt attorneys where all lose money. Then we can all scream about the state of IP laws in America.
    Because the ‘worthless’ patents written and filed are still supporting IP professionals and shouldn’t be.

    Note: I’m not saying Gene would do thia. Just speaking in a generalized way.

  4. angry dude July 8, 2017 8:29 pm

    @Tesia Thomas

    I wouldn’t go as far as saying that every US patent is worthless…
    If this were the case the entire US industries like pharma or biotech would collapse in a few weeks

    However, for anything hi-tech (software or even hardware related) the impression created by SV IP thiefs is that all those inventions are somehow obvious and would have happened anyway, patents or not…
    “coders will code, inventors will invent etc.”
    That impression is of course entirely false, as every regular reader of this blog understands

  5. Tesia Thomas July 8, 2017 9:27 pm

    @angry dude

    Sorry, I’m going to be angrier than you thinking their useless. But, will I still enter national stage of my PCT in the US? Probably, because things can change…and I’ve already spent thousands.

    I think any valuable US patent is useless. The only safe patent is the initially worthless patent.

    You may think it’s just SV IP thieves but I know its the government itself.
    Various agencies hate the fact that their researchers and their private big company friends could not solve particular problems.
    I’m in this situation and am being advised by previous victims.

    The reason pharma and biotech are surviving right now is that no one is challenging most of their prior issued IP. They’re sitting ducks though.
    If tomorrow, pharma and biotech patents were challenged do you think they’d survive?
    Well, who is going to challenge them? Other pharma and biotech competitors? NO!! Because then the same thing would happen to them.
    Domino effect!
    All US pharma/biotech IP portfolios ruined. Foreign generics take over.

    They’re preserving themselves by not ruthlessly IPR-ing their competitors.

    Just as Google/Waymo dropped the IP infringement lawsuits against Uber because it knows Uber can pay to eliminate its IP…

    I might have previously been dumb enough to invent and file IP but I won’t make that mistake again.
    And, I’m not going to hide from the facts of the matter.

  6. Tesia Thomas July 8, 2017 10:20 pm

    And the thing about these big company patent portfolios is they’re made of thousands of iterations!
    It wouldn’t take much to invalidate an iterative patent when groundbreaking inventions of small players are invalidated.

    I see my competitor’s IP and assume I’ll face IPR in the future and just think, “Well, WTF they can patent this sh*t and have it valid.”

    Decades old companies have thousands of patents in their portfolios and…where’s the thousands of new tech? I don’t see it. Definitely not in my tech’s field.

    Google and the like are preemptively striking the small inventor. This system favors them against small players because they have money.
    Uber, though, is not a typical small player and has enough money to match Google’s force.
    I laugh at Google’s desire for an injunction against Uber. (I loved Google’s beginnings but now they’re totally evil.) Google probably wants to license its IP to Uber.

    I looked up the crappy new injunction laws a while ago.

    Did the plaintiff suffer irreparable injury or undue hardship?

    Well…it seems like every SV startup person says, “Ideas don’t matter. Only execution matters.”
    And this makes efficient infringing OK because those poor inventors just aren’t business smart and that’s the real reason they failed.

    Well, they can eat their words. Google is. Why fight over IP in the first place when they can just execute?

    Execute to repair the injury.

    And, as far as disserving public interest…well I like driving my car so I vote ‘Nay.’
    Or, we can argue that Uber having self-driving cars would serve public interest more than Google having self-driving cars since Uber is a ride-sharing service.
    (Those are the 2/4 injunction rules that I remember off the top of my head.)

    Again, as I said about patent attorneys, this whole thing should go both ways.
    Call me spiteful but I don’t want to be broke alone because I want this problem fixed… yesterday.

    I only wish I had enough money to pay for the IPR of every iterative patent that I see. Or, I wish I could instigate every competitor in every industry IPR-ing each other.
    If every large company poured resources into IPR-ing each other then they’d destroy themselves and each other.
    And, then we’d get pro-inventor legislation.

  7. Pro Se July 8, 2017 11:58 pm

    The PTAB accepted a far fetch argument and issued a partial institution on an IPR against me… using 10… TEN… stitched together references…

    10 references = a “Likelihood of success”

    And that’s only if you’re 1 in 10,000 patent holders with something commercially viable..

  8. Benny July 9, 2017 5:55 am

    I followed the link to the poll. The poll is from 1999 – that is Before Google – but it is hard to guess the change in the average level of education over the last 18 years. On one hand, almost every American now carries, in their pocket, a device which allows them instant access to the entirety of human knowledge (although most of them use it to look at pictures of cats). On the other hand, the current choice of government leadership suggest that education hasn’t been an overriding priority in the formative years of many citizens.
    The biggest shocker of the poll came from the figure showing the UK citizens were (in 1999) dumber than their counterparts on the other side of the pond (who would have guessed?), although as this was a telephone poll (pole?) it could have been skewed by differential access of US hillbillies and UK oiks to lines of communication.

  9. Marc Scharich July 9, 2017 1:24 pm

    I think some of these comments are reading way too much into the current patent system being the reason why patent practitioners don’t want to work on contingency for patent prosecution. I’d bet even if Gene was working with an independent inventor and thought the invention HAD great potential to be patented and monetize, he still would NOT work for free, and neither would I or any other sane practitioner. It’s just as simple as professionals wanting to get paid up-front for performing the service they provide. A surgeon performing a heart transplant usually gets paid, a dentist gets paid and so does an auto mechanic. Likewise, patent practitioners should be paid for patent prosecution. Nobody likes working for free, regardless of the state of the current patent system.

  10. jbavis July 9, 2017 6:00 pm

    Clearly, if a U.S. patent today is worthless, then inventors would be better off NOT to waste time&money filing a patent. But if they still decided to (against better judgement) then they should simply file it themselves.

    IOW: if high quality patents are being shot down willy nilly by PTAB death squad, then what difference is there between “high quality” and “inventor written”?

    Honestly, all this talk that quality matters is ridiculous.

  11. jbavis July 9, 2017 6:36 pm

    By filing it themselves, they spend maybe $1k on filing fees and a couple RCE’s – but having an attorney or firm file it runs $20k+. In the end, if the invention is worth anything, it will be easily invalidated whether it was filed by inventor or filed by the most reputable firm.

  12. Tesia Thomas July 9, 2017 6:43 pm

    @jbavis

    I agree. We inventors should cut out attorneys completely if all they do is take our money with no risk on their part.

  13. jbavis July 9, 2017 6:51 pm

    The fact that patent attorneys will not take patent filing on contingency speaks volumes. Those that work in the field and know the most (the patent professionals) are themselves indicating that an investment (in their case: time to write&file) is not a worthwhile investment. Otherwise, even a 2% cut of $1m would be a better payout than the portion of $20k they get (after PTO expenses are deducted). And I’m sure any inventor would easily be willing to pay out multiples of 2%.

  14. Tesia Thomas July 9, 2017 7:03 pm

    Save attorney fees for pro se PTAB defense if we’ve already filed something.
    Spend the money on retirement funds if no app or patent has been filed.

    If only I’d known a year ago what I know now then I’d have never filed my IP. I would’ve waited.
    DoD and their private sector pals could spend more billions of taxpayer money for another 60 years. My private sector competitors could file thousands more iterations and tweaks and compete on branding and price in spite of those thousands of patents.

    If the laws never changed, then I wouldn’t disclose it in my will.

    There’s no value to being an inventor today so inventors need to stop paying for other, tangential professionals.
    Everyone relies on our works but we have no one to rely on ourselves.

    I wonder if unemployed attorneys will take patent cases on contingency as Gene described he tried to do when he was just starting out.
    I wonder if schools will lie to their admits about the wonders of STEM and IP law.

    Inventors are the bottom of the food chain. We could even describe ourselves as prey.
    Well, when the prey is eliminated from the food chain then it greatly affects predators…and that means anyone and everyone who takes from the prey.

  15. Invention Rights July 9, 2017 7:57 pm

    Ditto all these comments. Practioners that bill applicants in this environment are same as the invention promotion scammers. Is the patent bar going to man the buckets, or watch the infringer lobby burn down the patent system?

  16. angry dude July 9, 2017 8:20 pm

    Invention Rights @14

    I used to get a lot of junk mail from invention promotion outlets – back in 2000s
    At some point they stopped completely
    Speaks volumes…

  17. Ben July 9, 2017 8:23 pm

    It’s good to see some people through Gene’s ‘we want to work and get paid’ sophistry. It’s not like these attorneys ever spent three years of unpaid (if not negatively paid) work in order to earn a degree with an expected value great enough to offset its costs. If the expected value of a patent application was high enough, a patent attorney would take it on contingency. Maybe they don’t think the applications are worthless, but they definitely don’t think you hit a home run either.

  18. angry dude July 9, 2017 8:31 pm

    Tesia Thomas@13

    it’s not that simple. Independent inventors of course are the scum of the earth according to scotus critters, obama admin and most congress animals and media of course, but those SV zillion dollar corps never cared too much about us anyway
    The thing is that they (SV megacorps) want to enslave inventors they employ via draconian trade secret laws and elimination of patents with clearly defined priority dates and inventorship
    they want new age of (hi-tech) slavery
    amen

  19. jbavis July 9, 2017 8:46 pm

    The fact that on this article no patent professional has even commented surprise or disagreement says a lot. No patent professional is even saying that they would take a peek before discussing 10, 20, 30, 50% contingency. That is very telling.

    So why should anyone even bother filing with a professional if the professionals themselves are saying it’s not worth it?

  20. Tesia Thomas July 9, 2017 8:52 pm

    @angry dude, 17:

    I know what you’re saying but what good are the slaves?

    As I said, in my industry I see my zillion dollar competitors filing thousands of patents on worthless iterations that don’t even make any difference in their competitive position in the marketplace. Hence, they police trademarks and ruthlessly compete on price.

    If Google is stealing from some poor micro-entity then obviously its well-paid slaves aren’t worth anything.

    They’re going to drag us into the Dark Ages with their greed.

    The PhDs, degreed engineers and scientists aren’t worth much if these mega corps are still stealing from you and me.

  21. angry dude July 9, 2017 10:24 pm

    Tesia Thomas @19

    Well, I have PhD in hard sciences and software engineering background (not even mentioning my patent) but I never worked for those SV bloodsuckers

    Ironically, I work for the government… yeah, same government that made my IP worthless to me…

  22. Tesia Thomas July 9, 2017 10:34 pm

    @angry dude, 20:

    Well, I only mentioned degrees because the government’s biggest claim is that inventors like me have no ‘experience or credentials to invent a workable design.’

    Worst case scenario is to submit an idea to the govt and they steal it and are able to work some sort of novelty from it: http://www.heraldtribune.com/news/20160826/army-quest-for-deadlier-green-bullet-wont-enrich-bradenton-man

    It’s also why I applied for an SBIR and wasn’t awarded it yet they turned around and asked me for the tech.

    Education is merely correlative to research success but this world plays like it’s causal. They think only PhDs can do research.

  23. angry dude July 9, 2017 10:56 pm

    Tesia Thomas @21

    To say that government “steals” something is not quite correct..
    Government doesn’t make anything and doesn’t want anything and it can have anything it wants for free anyway …
    BUT it is an agent facilitating stealing of IP from small entities (yes SBIR and other programs like that) by large single-source corporate contractors like LM, Raytheorn, Harris and such…
    The stories I’ve heard are horrible, just horrible
    So thanks but no thanks
    no sbir for me

  24. Tesia Thomas July 9, 2017 11:05 pm

    @angry dude, 22:

    I don’t agree with the designation between employees of the government and the government as an ideal.
    If the government employee takes while in their government role then it’s the government taking. If a government employee commits fraud in their position in the government then it’s the government committing fraud.
    This is why I don’t agree with qui tam lawsuits where the government is assumed a victim. The people/taxpayers are the victims.

    Also, just as efficient infringers don’t get free IP or inventions, neither does the government.
    They pay with time and money. Filing IPRs, workaround strategizing, and more. They have to pay someone to make whatever they want or make it themselves whether me or some prime contractor.

    Everything costs money and/or time.

  25. everyone wants something for nothing July 9, 2017 11:20 pm

    Because it’s an excellent business decision to spend 40+ hours to prepare and procure a patent over, say, 3 to 5 years and then, should the invention actually become commercially viable, spend another 40 or so hours seeking and negotiating with licensees for a favorable license terms in the hope that you get some small percentage of the license fees.

    And all of this from some “independent inventor” who has been so successful in the past that he can’t afford to spend $10 to $15k to file the patent application and another $6k or so to prosecute it.

    Yeah, that’s a great business model for sure.

    This is exactly why my firm doesn’t take calls from “independent inventors.”

  26. angry dude July 9, 2017 11:51 pm

    Tesia Thomas@23

    The problem is that we have a revolving door between government and corporate world
    Just look at the PTO directors…
    Serving their corporate masters while in the office, then getting top paid corporate position (plus government pension) after leaving office – this is how our government operates today
    the swamp is not drained

  27. Jeff Lindsay July 10, 2017 4:08 am

    Patents have value and should be pursued for good inventions, but inventors need to realistically understand that it is a rare invention that really succeeds in the market. And realizing the monetary value of a patent can take several times longer — sometimes several decades longer when complex litigation is required — than a personal injury lawsuit and the odds are always much lower even with the best inventions.

    Though I appreciate many of his remarks on this website, I fell off my chair when I read Angry Dude’s statement: “delayed pay of 1 mil (even with 70% probability) is much better than immediate check for 25K”. I thought Angry Dude’s reason for being angry was due to not being able to realize monetary gains from a great invention, a problem that many great inventions face (and yes, it can lead to anger and frustration!). But after your personal experience, where do you get this 70% probability number? The probability of getting a patent issued is less than that. The probability of it surviving an IPR it’s actually a valuable patent impacting a competitor/copyist is far less than that.

    But even if the patent is miraculously 100% bullet proof, the greater risk is that the inventor will not make the required investment and take the other steps to ensure eventual market success. A good invention + perfect patent without serious investment and capable business skills and great passion and endurance may just wither away when the going gets tough, as Gene noted. It’s not whether the attorney believes in the patent or not, it’s whether they believe in you and your ability to endure, invest, raise capital, make wise business decisions, hire the right people, etc., to create business success — and one of the biggest red flags indicating that the inventor lacks the business savvy and financial commitment to generate success is when he asks an attorney to put in serious skilled labor for weeks or months for free in hopes of success many years later. Might as well ask his local Mercedes dealer to give him a new car so he can drive to Vegas and then give back 10% of his winnings. It’s a terribly unrealistic expectation.

    That said, after paying fair fees for the service, feel free to add some long-term bonus incentives like 1% equity or something to encourage them to go the extra mile and to keep you as a client. But don’t ever expect them to work for free, which is what contingency work usually is in the patent drafting space. But some of us may choose to work for free for friends or family members (I have and don’t regret it).

  28. Eric Berend July 10, 2017 6:33 am

    @ 14., ‘Invention Rights’:

    I have been banging the drum on this one, for over a year, in many of my various comments written on articles published on this blog. if patent attorneys, as practitioners, cannot perceive how severe the fundamental damage is, to their domain of legal practice; then, there is little inventors can do but wait for their slowcoach realization as the house burns down.

    We are witnessing historic destruction of the original U.S. implied Constitutional bargain forged by some 200 plus years of former jurisprudence. This is multi-generational harm from which this system, may never recover.

    One interesting aspect, is whether the SV IP pirate cabal, can ‘handle’ China, India, Europe and the rest of the world; in lieu of the traditional raft of inventors and industrialists that served the economy of the United States so well, in the past. Having shoved the latter out of the way, that is the de facto situation; these mendacious tech pirate chauvins are truly deluded to presume they are ‘masters of the (e.g., this) universe’.

    Really….these corrupt, soft, gluttonous darlings are going to ‘handle China’?!

    The sheer effrontery boggles the mind and offends the conscience – a ‘conscience’ these lizards in human form, obviously lack entirely.

  29. Eric Berend July 10, 2017 7:02 am

    @ 25., ‘Jeff Lindsay’:

    Given the legions of would-be “Chainsaw Als”* that have been produced by B-schools in the U.S. these past 30 years, I find your presumptions to be both breathtakingly incredible; and specious, at best.

    You demand what would be stellar business leader abilities – even if evaluating that prospective candidate as a CEO, alone – and then, you insist on world-changing technology; on top of that? What utopia do you imagine will deliver such clients to your legal practice, more than once or twice in a lifetime; if even that?

    An invention either has merit in the field of its application – or it doesn’t. We don’t qualify CEOs on their ability to invent; yet, you claim legitimacy of qualifying inventors, as CEOs.

    In the face of such blatant, obvious degradation of the jurisprudence that patent practitioners formerly relied upon, assertions such as yours smack of a fairy-tale wish list. Why not just come out and say it: “…unless Steve Jobs walks through my office door”?

    And, lest you think this be inappropriate, arising from a basis of a question of contingency; when inventors pay as you demand, we DO NOT receive even merely adequate representation and prosecution, far too often. The inventor’s legal ignorance, is the patent attorney’s easy exploit. If the task of successful prosecution is so Sisyphean n this ‘New Age of PTAB’, then, as a professional accepting a client’s trust and a member of the Bar, YOU have a responsibility to inform them of how daunting the proposition is and how long the odds against even modest success are.

    But you won’t; most of you, that is; will you? That would be ‘chasing business away’; wouldn’t it? To the most of us inventors, this amounts to a racket. If you don’t like the sound of that; then, as I have previously asserted in comments to this blog: YOU patent attorneys DO something about it – it WAS NOT inventors, who poisoned the well, here: it was legions of YOU PATENT ATTORNEYS, working for IP pirates. That you then have the sheer temerity to come here and lecture down at helpless inventors….well, I think that speaks more to the quality of your own character, than anything else.

    * – for “Chainsaw Al” Dunlop, who was finally made obvious in the Sunbeam, Inc. fiasco. They never did regain their reputation or good name, in the consumer appliances industry – to the point where the name wasn’t even picked up off the bankruptcy pile by one of the Pac Rim knockoff artists.

  30. Eric Berend July 10, 2017 7:11 am

    ^ ^ ^ typo and fact corrections to the above comment #27:

    1. that’s “Chainsaw Al” Dunlap (sorry Al; he’s still alive, evidently in Hoboken, NJ)
    2. I missed that the company actually ended up as part of Sunbeam-Oster. However, I stand by my implication that the value and marketing appeal of the brand name “Sunbeam”, was certainly destroyed in that particular corporate scandal.

  31. Benny July 10, 2017 7:14 am

    Eric,
    Handle China? Easy. Outsource your innovation to China, where RND isn’t hung up by US patents which aren’t unenforceable in Asia. Outsource manufacturing to China, and software to India. That leaves litigation your only US mainland expense.

  32. Edward Heller July 10, 2017 7:50 am

    ” I have never made a dime and I know of no patent attorney or patent agent who has ever made a dime on a contingency deal. So you simply cannot realistically expect a patent attorney or patent agent to represent you with respect to your patent work on a contingency basis.”

    I have. In fact, it seems somewhat common in Silicon Valley.

  33. angry dude July 10, 2017 8:49 am

    Jeff Lindsay @25

    Dude,

    I was talking about 70% (come up with your own figure) chance of getting a favorable district court ruling on already issued, valid and infringed US patent with all main claims granted in the pre-Ebay and pre-AIA era
    Patent litigation was always crapshoot anyway, never even close to 100% certainty even in perfect case scenario and in the best district such as EDT or Delaware

    As you might guess that 70% figure turned into exactly 0%, zilch, nada, none nowadays

    Congratulations to patent bar

  34. angry dude July 10, 2017 9:00 am

    Jeff Lindsay@25

    further reading your post I realized that you have zero knowledge of what IP is or at least what IP should be
    the monetary value of a patent itself is of course much less than the value of a company making patented product, but still that value should be substantial cause without patent there wouldn’t be any company selling product
    don’t you get it ?
    and in some industries (e.g. pharma – viagra and such patents) the total value of patents is synonymous to the market value of the entire company – remove the patent and the company is gone next day.

  35. Anon July 10, 2017 9:27 am

    angry dude,

    In your anger, it is you that shows “zero knowledge” of what IP is or at least “what IP should be.”

    IP is NOT a guarantee of making money, or even HAVING a market to make money in.

    IP is what is called a negative right.

    So far, I have been willing to sit on the side lines as the kvetching roars unabated.

    To a certain extent, I understand and sympathize with the pain.

    But that pain is no excuse for the suspension of reality and then turning around and accusing others of not understanding “what IP is.”

    Business models are a matter of choice – and the choice NOT to engage in a leveraged “contingency” billing model has ZERO to do with the pain that you are feeling and the general decline of the US patent system.

    The level of contingency billing model utilization was (most likely) equally as low in the best days of the US patent system. To ascribe the feelings (and fears, and angst, and petulance) as is being ascribed is nothing more than unmitigated whining.

    I get why you feel the way that you do. I even agree with several of the core drivers that have created the feelings that you feel.

    But I stop at the unmitigated gall of yours to think that your feelings make you right and that other professionals must have “zero knowledge” because they do not agree with your feelings.

    Enough.

  36. Anon July 10, 2017 9:29 am

    Taking shots at the patent bar is a waste of ammunition.

    We are not your enemy. Stop lashing out.

    Do more than emote. Think.

  37. angry dude July 10, 2017 9:30 am

    Jeff Lindsay@25

    “…after paying fair fees for the service, feel free to add some long-term bonus incentives like 1% equity or something to encourage them to go the extra mile and to keep you as a client”

    R U kidding us ???

  38. angry dude July 10, 2017 9:41 am

    Anon @33

    you still don’t get it

    I am all for paying good patent attorneys their fair fees (in my case it was 25K for a very detailed patent application with many claims)

    But stop mixing market success with the quality of patented invention itself
    Invention (meaning hi-tech invention) can be very successful in the market (just not by you – the inventor, but by some other dudes not asking your permission to be successful) and your US patent can have zero value at the same time.
    … in today’s day and age – after-Ebay and after AIA (not to mention Alice and dozen of other scotus goobly gooks)
    what is not clear here ?
    sad

  39. Anon July 10, 2017 9:42 am

    Eric,

    YOU have a responsibility to inform them of how daunting the proposition is and how long the odds against even modest success are.

    Yes. But why do you suppose that this is not happening?

    it WAS NOT inventors, who poisoned the well, here: it was legions of YOU PATENT ATTORNEYS, working for IP pirates

    NO.

    Stop the transference. Under your logic, the legal system would grind to a halt. No matter which side of the matter is in a court, the counsel is NOT a target.

    Think criminal law. Would you really want defense counsel to be tarred with (supposed) perpetrators? This type of “thinking” is nothing more than emotion running amuck.

    Yes, counsel is involved on the side of infringers, just as counsel is involved on the side of those seeking to protect their rights. Aiming at attorneys though is a mindless act. Attorneys act without being ascribed the intentions and desires of their clients – by system design.

    Please realize the importance of this aspect of legal design.

    Now having said that, I DO make a distinction between those engaged in defense of clients in real life court battle and those that proselytize and advocate outside of the court.

    There ARE attorneys that actively seek to subjugate and obfuscate what the law really is because the attorneys desire a different state of law. For such attorneys, I hold the deepest enmity and ill regard.

    And I will go one step further and hold out that there are law professors that deserve even more disdain for their active role in not only teaching their disdain of patents to their legal students, but who are actively involved in conflating what the law means in order to push their own philosophies of what they feel the law should be.

    This runs back to prior discussions on why attorneys have binding rules of ethics – and that those even more entwined with the law (law professors) should thus have even stricter ethical constraints – and have the opposite.

  40. Anon July 10, 2017 9:46 am

    angry dude,

    Stop.
    Think.

    Your refrain of “you don’t get it” does NOT play.

    I very much “get it.”

    I just don’t agree with you.

    There is a huge difference.

    You parrot “But stop mixing market success with the quality of patented invention itself” while it is YOU that is doing the mixing, with the desire to have some sort of “contingency” tie to that very market success.

    If YOU are not making the very mistake that you seem to be calling out others for, what exactly is the “event” that your “contingency” pivots upon?

    You need to place your emotions to the side, because they have very much clouded any point that you are trying to make.

  41. Tesia Thomas July 10, 2017 9:54 am

    Anon:

    I don’t and I don’t think angry dude does either. We don’t want to mix market success with IP quality.
    I want to ensure that if I pay thousands for quality IP then there’s some substance to what I paid for.
    As of now, I pay thousands and IP professionals do their very best work and people’s patents are tried until they’re dead.

    There’s no security in my investment with or without attorneys.
    So why should I pay attorneys?

    And who are these PTAB judges and Michelle Lee and whatnot. They’re all attorneys.
    If you can compare IP attorneys to criminal attorneys defending the wrong then you can understand this.
    Or, if there’s a real difference… How IP attorneys claim “the liberal arts majors” don’t understand then you guys need to be passing laws that say only STEM backgrounds make and decide IP laws.
    But then explain Michelle Lee?

  42. angry dude July 10, 2017 10:00 am

    Anon@38

    I did not need contingency patent prosecution attorney
    – paid cash upfront
    I am just astounded by the sheer arrogance of the so called “patent bar”
    do you think you are that special ???
    that your knowledge is even relevant (answer – it is not cause laws are changing faster than you can adapt)
    and in that case why any smart independent inventor even needs you ?
    to write claims which will be called invalid after scotus coughs up next goobly dook decision ?
    get real people

  43. Tesia Thomas July 10, 2017 10:01 am

    @Jeff Lindsay
    Inventors are working for free!
    And paying out thousands to people who can do nothing to aid them!

    No man wants to work for free.
    EXACTLY.

    So if I work for free then so do you. Or neither of us works at all.
    Inventors are tired of financing our own demise. We’re bearing this trite ecosystem on our backs.

    If angry dude is correct with saying Google et all want no patents then you’ll be put out of business anyway.

  44. Tesia Thomas July 10, 2017 10:05 am

    If we’re unsuccessful in the market then so be it.
    It’s like buying a house you never live in or buying a show car.

    If we just like looking at our IP then who cares??? We bought it!

    The problem is we don’t own what we buy.

  45. Mr. Patent Agent July 10, 2017 10:08 am

    All of the “anti-patent” rhetoric and hostility towards patent practitioners in many of these comments is astounding. If you’re an inventor and spent thousands on obtaining a patent, but have not had the commercial success you’d hoped for, it’s not the practitioner’s fault or the fault of the patent system.

  46. Tesia Thomas July 10, 2017 10:22 am

    Oh, and just so we’re clear…

    Inventor invests:
    -$$
    -Time

    Inventor hopes to get:
    presumed valid, enforceable patent
    even if just to look at, a trophy

    Inventor might hope for a return on investment:
    Make/sell/use invention and make $$$
    (But some of us are okay paying for that signed patent document and framing it and sticking it on our walls.)

    Don’t all investors get stock/equity (IP) even if it turns out to be worthless?
    Isn’t stock valid even if worthless?

    Well my stock is my IP.

    Since I don’t get that then I’m not putting money, energy, and time into this system anymore.

    What we inventors are saying is we’re going out and taking everyone else with us. We’re not supporting this system that’s killing us. And, yes, we’re the only ones supporting it 100%.

    Developed nations will cease to develop without our blood, sweat, and tears.
    Small businesses pay taxes, bring jobs, and other avenues of economic prosperity.

    IP attorneys are worthless without inventors…and so is the US economy.

  47. Tesia Thomas July 10, 2017 10:41 am

    Maybe my first goal in inventing was redecorating my living room to match the patent ribbon. An issued patent is modern art…both (issued patents and moden art) trace back to the Industrial Revolution.

    Second, I wanted to change the world, save lives, make lives easier.

  48. jbavis July 10, 2017 11:16 am

    If Google dropped some of their patent suits against Uber may have been to avoid invalidation by PTAB death squads, then this tells us Google are starting to value their patents. So it seems the easiest way to convince Google to flip is to start filing IPR’s against their most important patents. But, as this article and Gene and Jeff Lindsay now show us, patent professionals are not interested in the long-term patent system and the success of inventors but rather out to make their money today.

  49. Tesia Thomas July 10, 2017 11:20 am

    @jbavis
    Yep.
    Maybe we should lobby Uber and donate with the stipulation that they have to use the money for Google patent IPR.

  50. jbavis July 10, 2017 11:21 am

    Tesia, inventors aren’t supporting the patent industry 100% – it’s actually more than that – PTO fee diversion to Congress ends up supporting who-knows-what not even related to patents.

    Inventors are the prey, the tide has receded and know we clearly see the patent lawyers are also the predators.

  51. jbavis July 10, 2017 11:23 am

    Tesia, as I’ve said before, if Google is the enemy, then any enemy of Google is a friend. I’ve said that before and when the tide receded, Anon was caught not wearing a bathing suit. It all becomes very clear.

  52. Tesia Thomas July 10, 2017 11:31 am

    @jbavis

    Right.
    Since patent attorneys work for money they’d likely have no problem working for Google because Google can definitely pay.

    I realize even this blog is a half-hearted attempt at reform when posts like this also share the same domain.
    Attorneys are enablers. This isn’t a criminal case. There’s no ‘innocent until proven guilty.’
    It’s are you helping to destroy the patent system or are you fighting to preserve it?
    Attorneys fight where the money is.
    Once the small player dies out they might all be scrambling to get work on Google patents. But, by then Google won’t want patents.

  53. Tesia Thomas July 10, 2017 11:34 am

    Attorneys:
    Will you become destitute rather than work for Google when the time comes?
    Is there principle and integrity in your work?

    It’s a rhetorical question.
    If you’re really pro-inventor then you’ll be as poor as us soon enough.

  54. Silicon Valley Inventor July 10, 2017 11:51 am

    @Tesia #41,42,43…and @angry dude throughout

    It seems as if the whole thrust of Gene’s article has been lost along with the element of risk/reward. The inventor is choosing to take on all the risk and potential reward embodied in his invention. The patent attorney is offering a service. All the talk afterward is just kvetching.

    Market forces and even legislative forces are really not the issue here at all. The patent attorney is not being hired to determine if an invention will succeed in the market place, which requires an entirely different skill set. People with that skill set do not become patent attorneys or even inventors.

    Nor is the patent attorney an omniscient purveyor of law. The pendulum is constantly swinging. An inventor must know it takes a perfect storm of market forces, legislative climate and infringing technology to make a patent truly valuable.

    The service being provided by patent attorneys is to file the best possible patent application to USPTO for a given invention. I am just amazed at my fellow inventors who think patent attorneys should share in the risk!

    That said, I know of reputable patent attorneys who are kind enough to help an impoverished inventor or two with their first patent. The attorney asks for nothing–no payment for their time and certainly and no promise of future profits.

    The constant whining that patents are worthless is grating. Most patents are worthless, even with the strongest patent protection laws on the books. Almost all of the legal and market forces that make an invention valuable are beyond the control of the inventor — and they should know that going in — but why expect the patent attorney to live in the same risk/reward paradigm as the inventor? It just doesn’t make sense.

    My own patents were filed in a space that was sparsely occupied by mainly small players when I filed 10 years ago. Since then, Google, Microsoft, Facebook and many others have joined the space and I now think one of the smaller players is infringing.

    How I as the inventor choose to proceed can indeed render my patents worthless or valuable, given the challenges that are the focus of this blog. I’m much more interested in attorneys who are willing to actually fight tech goliath infringers and the courts on patent protection on spec than in this notion of working on patent applications on spec.

    Court decisions will determine where the pendulum swings, and that is where attorneys experienced in patent litigation really can shape the value of patents and inventors going forward.

  55. Tesia Thomas July 10, 2017 11:53 am

    Patent professionals are betting on inventors ignorance and ‘craziness’ to keep them well-fed through this mess.
    “Well they don’t understand the law so they won’t know…until they’re deep in the mess.”
    “Well, every inventor is fanatic about patents! They’ll just shell out money for their dreams.”

    We inventors have to educate our peers.
    Crush their dreams before they empty their wallets.

  56. Tesia Thomas July 10, 2017 11:57 am

    @Silicon Valley Inventor, 51:

    If you pay for a service and don’t get it what do you do?
    As I said, attorneys do their very best work to no avail. Why pay them at all?
    Their work and mine means nothing in lieu of these laws.

    If you take your car in for an oil change you expect to at least see a clean dipstick even if you don’t get half a mile before the wheels fall off. Me too.

  57. jbavis July 10, 2017 11:58 am

    If patent lawyers really cared about inventors and fighting Google, they would recognize the plight of todays small inventor and proactively look to helping them. Be it working for contingency, or be it providing templates for inventors to file patents Pro Se, or be it software that writes the patents, etc… Gene at least offers the 3rd one, but it seems that most others are out to make their money and like Tesia says, will abandon any ethics and work for Google one day (if patents still exist).

    Or, dear patent lawyers: let’s forget about inventors of today and talk about your kids and nephews and nieces. Is a world without inventors a world you want for them? Because it’s YOUR own kids that will have to live in whatever the scorched earth will look like.
    What will YOU say when your grandchild asks “Grandpa, did you fight against Google?”. The answer has become clear and now we see why people like Anon fight inventors and hide their real name.

  58. Silicon Valley Inventor July 10, 2017 12:05 pm

    @Tesia #53,

    I hear you but you’re speaking in absolutes that do not exist in the real world. I paid for a service and did get it in the form of issued patents. The market forces and legislation that can impact the value of those patents are not the service I paid for. You’re conflating it all.

    Even if the PTAB wants to render all patents invalid and the landscape is fraught with efficient infringers, a skilled inventor can innovate technology that will interest tech goliaths jockeying for IP position with other tech goliaths. There is still value to be created in patents. It’s just very difficult and risky compared to even ten years ago.

    At some point the pendulum will swing back the other way. Why lose hope? That’s even more pointless than AIA.

  59. jbavis July 10, 2017 12:06 pm

    Silicon Valley Inventor @ 51:

    Today all patents are worthless. For $20k fee + some time you can invalidate ANY patent. So why pay for patent attorney quality then? Seems a naive, mistake-riddled pro se filing is just as good.

  60. Tesia Thomas July 10, 2017 12:16 pm

    @ Silicon valley inventor
    You are missing the point.
    I don’t care about an issued patent. I care about a defensible patent.
    No attorney makes those with AIA.

    I can get an issued patent by allowing the examiner to steer me to that. By law they have to guide you if you ask.
    I read the mpep.

  61. jbavis July 10, 2017 12:17 pm

    Silicon Valley Inventor @ 55:

    For the pendulum to swing back the other way either requires lobbying $funds or convincing the voters what’s best for them. Small inventors will never have the money to match Google’s $100Billion cash in the bank – and the average American voter will never understand the importance of patents. How will it ever possibly swing back to something even remotely useful?

  62. Silicon Valley Inventor July 10, 2017 12:18 pm

    @jbavis #51

    All patents are not worthless, particularly as part of enormous portfolios that tech goliaths spend billions of dollars prosecuting, but also in other (admittedly rare) arenas. The current climate is horribly anti-patent. I’m not saying otherwise. But there is still value to be had, and there is still hope that the pendulum will swing hard the other direction. Perhaps sooner than later. That is why patent attorney quality is important. Change is the only constant.

  63. Silicon Valley Inventor July 10, 2017 12:18 pm

    Sorry, that should be in response to #58.

  64. Tesia Thomas July 10, 2017 12:22 pm

    Well I’m not paying for well crafted words on paper. I’m paying for a property right to own what I’ve made.
    Without the ownership the words mean nothing.

  65. Anon July 10, 2017 12:33 pm

    SVI,
    Exactly.

    And in the midst of that kvetching, you have those clouded with emotion making statements that are clearly wrong on their face (hint: jbavis @ 45, 47, 48, and Tesia at 41 “So if I work for free then so do you.“).

    Reason has taken leave in light of the emotions and mindless trashing of “attorney” has taken its place.

    Stop the wallowing folks. First step is to realize that there are patent attorneys just as upset as you are, but that are fighting back in a different manner. The plainly bizarre insistence that the business model MUST be a contingency model is hubris on your own part. Remember, you are already free to attempt to enforce this type of arrangement with your own patent counsel, but make no mistake, accepting you as a client is a business decision that is up to the attorney, and attempting to impugn attorneys who do not view “contingency as a MUST” does NOT mean what you are trying to make it mean.

    It simply does not. Sorry if that bursts your bubble, but that is reality. As Mr. Heller indicates, there may be attorneys out there who will accept such an arrangement. My view is that the number of such attorneys – on an overall percentage basis for our industry as a total – has NEVER been at a level to support your emotions. I do not have the solid facts (industry surveys and the like) to make my views into an unassailable matter of fact, but I would put to you that even in the very very best of times, the percentage of patent attorneys willing to prosecute under a contingency arrangement has never come anywhere close to double digits (and most likely, has never even come close to the digit 2, as in 2%).

    You (the royal you) now kvetch and moan as if the lack of contingency business arrangements “reveals” some hidden animosity or “collusion” and that my friend is utter poppycock and delusion.

    ALL that I am seeing here is emotion. Baseless and emotive venting may have its place, but what transpires here in the comments of this piece has NO place in any aspect of making things better.

    Enough is enough.

  66. Silicon Valley Inventor July 10, 2017 1:08 pm

    @Tesia #62

    Yes, you are paying for crafting words on paper — words that carefully describe your invention so that it can be protected against infringers to the fullest extent of the law. The fact that legislators and courts eroded those protections has absolutely nothing to do with the patent attorney. More specifically, you are paying for someone who is mindful of legal and technical arguments and pitfalls in a way inventors (I shouldn’t speak for all inventors, but I probably speak for most) do not.

    @anon #62
    Yes, it does seem counterproductive to ask patent attorneys to share in the risk beyond simply being a patent attorney in an anti-patent climate. I imagine I’d feel angry if I chose to pursue a career as a patent attorney and then watched patent protections erode over the past 10 years. We (inventors and attorneys) are in this together, so it makes no sense for inventors to play a blame game against some of their best allies.

  67. Silicon Valley Inventor July 10, 2017 1:08 pm

    sorry, I meant Tesia #61

  68. Tesia Thomas July 10, 2017 1:11 pm

    No Anon,
    I don’t completely want contingency patent representation. I paid for my patents so far. I never asked for contingency representation from Gene or any other attorney. The most I’ve actually asked for is deferred fees. I was in an SV accelerator and some attorneys do that there.

    What I want is a defensible patent.
    And as it stands, no matter what attorneys write, infringers get unlimited tries at invalidating my patent.
    So it’s not worth the paper its printed on whether I use it or not.

    This isn’t emotion alone. It’s facts.

    Gene, in this article said he works for money. That’s great. So do I.
    Everyone does unless they’re volunteering.

    If my patents are going to do nothing but bring me into lawsuits that I can’t win then I’d rather not pay extra for them.

    You can’t get injunctions and you can’t even keep your patent valid.

    Patent brokers are going away which signals the laws against IP and patent owners.

    So yes, if I work for free then attorneys don’t get my money.

    Issued patents were never the goal. I want defensible IP. Issuance is merely a stepping stone.

    Inventors don’t want to begin to sell their tech because then they’ll be consumed in lawsuits from bitter competitors.

    My competitors and the govt have asked many times to see my PCT that is not yet even published.
    The only thing helping me now is that they can’t PTAB IPR an application so they have to wait.

    I have already been threatened with IPR on a nonpublished PCT.
    Competitors IPR like they breathe now. Anything to squash the little guy.

  69. Tesia Thomas July 10, 2017 1:14 pm

    No eyes have seen the quality of my IP and I have threats. Who cares what my attorneys wrote?
    What good are attorneys?

  70. Tesia Thomas July 10, 2017 1:15 pm

    Competitors know they can kill any patent they want

  71. Silicon Valley Inventor July 10, 2017 2:15 pm

    @Tesia #65
    “Gene, in this article said he works for money. That’s great. So do I.
    Everyone does unless they’re volunteering.”

    Yes but you’ve founded a company (I assume, as you’ve been accepted into an accelerator) and you are therefore working on a venture. Ventures carry risk. The greater the risk, the greater the potential reward. That is not at all what attorneys do unless you’ve co-founded the company with a patent attorney (which is unheard of).

  72. Tesia Thomas July 10, 2017 2:30 pm

    @Silicon Vallley Inventor

    I think you and Anon are still missing the point.
    This isn’t emotion or about contingency.

    I don’t care if you share the risk. I just think the reasons you don’t are more about the fickle nature of patents because in the end investors could sell ip portfolios in the event that the business plan doesn’t work out.

    That’s what happened with the dot com bubble. Companies failed. Patents were sold to reclaim some losses.

    I’m saying that the govt and its Kronies have threatened me and other inventors with IPR.
    It’s another litigation tool to bury us in legal costs with a bonus…we lose the IP too!

    Think about Kearns against Ford.
    All Ford would have to do today is file IPR.

    In reality there seems to be no bounds to how broad patents can be interpreted. Everything comes from something and when, as Pro Se mentioned, your competitors can string together 10 references then you have no chance.

    I know we’re all in this together. That’s what I’m saying.
    I’m saying that if I lose then you lose too.
    Your job security depends on strong IP laws regardless of the market capture of your clients.

    Your work product isn’t worth $20k to me if the laws are bad.

    If you pay a realtor to write up an amazing deed to get a house, it doesn’t matter what you want to do with the house if someone can just rip up your deed in the courts.
    The realtor did the best they could and you call them angrily and they say “but the law says you just can’t own a house today.”
    Do you buy another house?
    Do you ever pay a realtor again?

  73. Silicon Valley Inventor July 10, 2017 2:31 pm

    @Tesia #65
    Regarding your distinction between issued patents and defensible patents, maybe an attorney could address this better than I, but if it’s not issued, how can it possibly be defensible? Of course your point about rendering patents invalid is well taken, and it’s a concern that bothers us all. But as long as some claims of some patents make it through the IPRs process unscathed and some lawmakers are fighting for patent protections, there is still value to be mined in issued patents.

  74. Tesia Thomas July 10, 2017 2:36 pm

    @ Silicon valley inventor

    As I said, issuance is just a stepping stone.
    I could literally file discombobulated sentences and improperly formatted drawings and per US patent law, the examiner would have to help me write claims and they’d have to allow me to fix the crazy patent that I filled, describing all the things I failed to number…

    I can ask, “how do I change this patent to get it allowed?.”
    I could even go to uspto and ask them to help me write the patent before filing. It has been done.

  75. Tesia Thomas July 10, 2017 2:49 pm

    @Sv inventor

    I’ve seen office actions.
    Examiners are spell check, grammar nazi, English and Writing professors, and more.

    They evaluate your sentence structure, drawings, and everything else.

    You can go to them and probably say, “Hey I’ll pay you $1million to issue this patent.”
    The worse you might get as a ‘yes’ is, “No problem. But you understand it sucks right?”

    Everyone knows the patents value is its defensibility not issuance.
    The thing is issued patents used to be presumed valid.
    So issuance would tell a lot about defensibility. It would correlate to a much greater degree.
    With IPR, that’s out.

    Read the mpep.

  76. Mr. Patent Agent July 10, 2017 3:15 pm

    @ Tesia Thomas

    You seem to complain a lot about patents being “worthless” for someone that MIGHT not even own one yet (you mentioned above @67 “no eyes have seen the quality of my IP”). To you, patents are worthless, attorneys are worthless, everything is worthless in your “patent world”…but… you are certainly entitled to your opinion.

    Also, the USPTO does NOT HAVE to go out of their way to help you get a patent issued beyond the normal course of examination. They don’t HAVE to help you write claims. Sure, they can give you suggestions and attempt to guide you if you schedule an interview, but they don’t HAVE to do all of the work for you in baby steps. If you get a good examiner they might, but you’d better have a lot of money saved up to keep filing RCEs and maybe eventually you can get to issuance. Even then, if you file a bunch of “discombobulated sentences” (your words), do you really think that will render a quality application? You are allowed the chance to fix it, but you’d be limited on what you can re-write / amend because you’d be risking adding new matter, which is impermissible. If you file a junk application, an examiner will slam you with rejections and they’ll think it’ll most likely go abandoned and not take it seriously. Furthermore, the worse an application is prepared the less inclined examiners are willing to go the extra mile to help you. They’ll think – if applicant doesn’t care, why should I? Even if the patent system has been weakened over the past decade, without a patent, you have NO legal right (to the full extent of the law) to exclude others from making, using, selling, importing, etc. YOUR invention. And that’s a fact.

  77. Richard Catalina July 10, 2017 3:20 pm

    The job of a patent attorney is to counsel the client, and if the invention is patentable, prosecute an application with the broadest (but defensible) claims possible. No more, no less. Patent attorneys should not take on the role of evaluating the commercial viability of inventions or attempting to predict whether a client’s patented technology will be commercially successful. There are too many variables and the client should know more about the market and the need for the innovation than anyone else.
    I am often asked by individual clients whether I think their invention will make them millions. I am honest and advise them I have no idea; that is a subject matter of which they should be researching and that is not my job as patent counsel.
    I am also asked quite regularly whether I will prosecute applications on a contingency fee basis or be willing to become partners with the client. That is a recipe for disaster.
    As patent attorneys, we work within the law to seek patent protection for useful, novel and non-obvious innovation. Maybe we will succeed, maybe we won’t. If successful, the claims of any issued patent will be different than what were stated in the original application. Taking cases on a contingency fee arrangement makes little sense, since there is simply no automatic payout from an insurance company upon issuance of a patent by the USPTO as there is at the end of a personal injury case.

  78. jbavis July 10, 2017 5:25 pm

    Anon: emotions? Our arguments are based on facts that have not been rebutted:

    1) there is no difference in who writes the patent – whether it’s the greatest Hall of Famer patent attorney or some inventor in his basement. Any patent can be invalidated for about $20k.

    2) it’s not just inventors at risk, but the career of many patent professionals are at risk too. Patents are dead, it’s not long until large corporations stop filing altogether.

    3) there is no hope that things will change. Large tech corporations now have more money than automotive, pharma, and all the inventors of the past 100 years put together. Enough Congressmen will be bought, the costs are a drop in the bucket.

  79. Curious July 10, 2017 6:29 pm

    OK … a lot of interesting, informed, and uninformed comments. As a self-professed patent attorney, I can say that I’ve taken on matters on a contingent basis. However, it is not something I would recommend most attorneys do. It has to be a special client and special technology. For reasons elaborated by others, you can have a great patent on great technology but still not make a dime on it for reasons entirely outside your control. For example, perhaps the law changes or the client loses interest (for whatever reason). However, it is very hard to turn away paying clients because you are working on something that you may or may not get paid for. Additionally, unlike contingent patent litigators (who usually get 40-50%), there is higher risk for contingent-fee patent prosecutors because there is no patent to work with. As such, based upon the risk involved, the reward needs to be higher (i.e., over 50%), but I expect neither inventor nor patent attorney wants to do that kind of deal.

    I, for one, have said many times on this blog that I think that the patent system is broken for the individual inventor, and I would counsel them on the considerable unlikelihood that their investment in intellectual property will return any benefit to them. They may or may not agree with me, but if I’m evaluating an investment (which is what happens when I’m working on contingency) I’m evaluating the investment with a cold, hard eye considering all of the facts — not looking at the invention as “my baby” that I’m going to birth into the world.

    As a general matter, any reasonably competent patent attorney has plenty of work from sophisticated parties who understand the ups and downs of patent law. Making a living representing just small-time clients is a really hard living as a patent attorney. I’m sure there are those who succeed at it, but I want no part of that life.

    Regardless, it is up to the individual inventor to make their own personal risk assessment as to whether they should file for patent protection or not. While some attorneys are willing to be partners in an endeavor, this is something that can have potential ethical ramifications and should not be entered into lightly. I do not begrudge any attorney that believes that their job is to provide a service — not be an investment analyst.

    Trust me when I say most patent professionals are on the side of individual inventors — it is in our best interest to have strong patent laws that protect anybody’s intellectual property — from as small as a long inventor to as big as the largest corporation. However, don’t expect us to subsidize risky behavior — which is what happens when a small entity attempts to patent something.

  80. Tesia Thomas July 10, 2017 7:23 pm

    @Curious,

    Contingency fee IP counsel is drying up too.
    So explain that?
    You can get your patents, make tons of money, and then a competitor infringes and youre out of business because injunctions are impossible.

    And, as I said, most of these huge corporations aren’t making anything beneficial in the marketplace. They file iteration after iteration and they’re still selling 200 year old tech.
    At least in my invention’s field.

    The innovation isn’t coming from the large players. The small players are making the paradigm shifts and new states of art in most cases.

    Large companies aren’t disrupting themselves or their other large competitors.

    But large pharma and software are just sitting ducks under these laws. Either way you’re writing IP that can’t be defended.
    If someone strung together enough references in IPR against Google IP then most of their portfolio would be gone.

    You’re saying you’re willing to write invalid IP so long as you are paid for it.
    It’s not just small players who hurt.

  81. Tesia Thomas July 10, 2017 7:25 pm

    Contingency fee IP litigation* is drying up too.
    Meant to say *litigation*

  82. Tesia Thomas July 10, 2017 7:36 pm

    The laws changed for everyone. Some people’s IP just won’t get challenged. That doesn’t mean their IP is more defensible than mine.

    Attorneys thus already have a huge ethical dilemma on the side of the law.
    Any patent you write can be IPR’d to death. Cisco’s patents were IPR’d by a much smaller start up and died. I remember reading that post here.

    Cisco paid some attorney thousands for a worthless patent.

    You can’t claim that you hate ethical dilemmas when your whole field is now an ethical dilemma.

    That’s like a doctor billing you for medicine when they know you’re on death’s door.

  83. Anon July 10, 2017 7:41 pm

    jbavis @ 73 –

    Yes, emotions. Nearly 70% of all comments on this thread have been a pity-fest between three complainers whose whining was well enough let alone until that whining went too far – as I have noted.

    Further, your three “facts” are not facts per se, and each has interesting qualifiers and other indications that I have myself mentioned on occasion. However, none of those tidbits change the FACT that the whining has gone too far and that errors in that whining have propagated into an attack mode on attorneys in a plainly unjustified manner.

    I will say that if you personally truly feel that there is no hope for change, that I would ask you to kindly STFU, as your whining in such a case only serves the forces that you whine about.

    Help or get out of the way. Whining and claiming “no hope” is more harm than good.

  84. Tesia Thomas July 10, 2017 7:49 pm

    @Anon,

    Who said there was no hope for change?
    I have hope.

    But I’m talking about the present.

    It doesn’t serve the forces I complain about. I’m saying, as evidenced by Cisco losing IP, that the law smites us all.
    So if attorneys work at all then they have an ethical dilemma.
    No amount of money or size can save anyone if their IP is challenged.

    The laws affect everyone.
    I’m not beating up attorneys. I’m saying that your work product is rapidly losing value and soon won’t be paid for by anyone, large or small if the laws don’t change.
    That is the present patent climate.

  85. Tesia Thomas July 10, 2017 7:54 pm

    The post: http://www.ipwatchdog.com/2017/06/05/ptab-overturns-two-cisco-patents-clearing-way-arista-overturn-itc-exclusion-order/id=84095/

    No one is safe. I’m sure Cisco bought the best IP counsel to write and defend their IP that money could buy.

    How can you say I’m whining?
    These examples aren’t even about me.
    And they happened.

    Just because I’m expressing sadness for the dying patent system that means I’m whining?

  86. Jeff Lindsay July 10, 2017 7:59 pm

    @Angry Dude, Eric, Tesia, and others: Gene and many IP workers who enjoy his blog are some of the best advocates for inventors that you will find. Your anger toward us is misdirected. We agree that the current system is hostile and unfair in many ways and needs to be fixed,and Gene and his team here are some of the real leaders helping to drive awareness and bring reform.

    I actually have a few patents and applications myself and know the pain of having a good invention and business opportunity that is hindered by the patent hostility of the USPTO. In addition to some corporate experience working with outside inventors at a global consumer products company, I have several years of experience helping inventors on a contingency basis and know the risks well, though the risk was that of my former boss, Cheryl Perkins of Innovationedge.

    Cheryl was Chief Innovation Officer at Kimberly-Clark and named one of the world’s top champions of innovation by BusinessWeek. She formed a daring start-up that was more pro-inventor that any organization I’ve seen. As part of the early business model there, we took on inventors with great inventions on a contingency basis, with the goal of using our open innovation experience and network to help them rapidly commercialize their products, and all the research, marketing, IP analysis, pitching and selling was at our expense, with the hope of later getting a cut when a major player licensed and commercialized their invention. They often had some IP in place. If patent filings were needed, I’d do them, and while Cheryl would charge some quite low fees for the heavy time investment this would require (the patent could have value for 20 years but they could ditch us as a partner if they felt we weren’t delivering, so there had to be some compensation for the patent work). It was a very gutsy and generous business model. We had to be very choosy, but we really wanted our inventors to succeed and became friends and champions for them. I don’t think you will ever find a more passionate and committed champion of lone inventors and start-ups than Cheryl, nor a more fair, generous, and pro-inventor business model than the contingency operation we ran. It was in many ways a remarkable charity, and was perhaps driven more by passion for innovation than a way to make money. The contingency model proved very difficult to justify commercially, IMHO. But we learned a lot about the pains inventors face and became extremely sympathetic to their plight. We even wrote a book with related content – Conquering Innovation Fatigue, with a lot of material about the pains inventors face.

    Eric, Angry Dude, Tesia, a patent by itself creates no value. The value comes when it protects an invention that is being adopted widely and has been or will be commercialized by a business. It’s easy to go from an idea to a patent, but there is a big journey from patent to WEALTH creation. That journey requires a business and sales and marketing by someone. We were not investing in an invention alone, we were also investing in the inventor. If the inventor was unstable, unreliable, or dishonest, there was no hope. They will have to make business decisions to close a deal with an interested company, and if they are delusional or insist on inappropriate control or whatever, the deal will fail. Contingency means investing in the person or the team, not just the invention. If they are going to form their own business, they don’t need to be a brilliant CEO, but they need to hire one. If they are going to license to a partner, they need to make rational business decisions nonetheless. Delusional valuations of the invention, unreasonable demands, strongly negative behaviors, etc. can all kill the deal.

    One of the biggest risks for doing this kind of work on contingency is the likelihood of the client not paying up after commercialization occurs. Some clients will find ways to avoid paying the promised contingency fee. As an innovation firm passionate about helping inventors, we had no desire to sue our our clients. Plus who wants that kind of negative publicity? After doing much to help some great inventors with great concepts, it was painful to be cheated. One never even paid the small fee for the IP we helped them create and they still own. I had four great years there (before an unresistable opportunity swept me away) and cherish the experiences I had with inventors, some of whom I am still close to and still cheering for, but we learned that going the extra mile for inventors and giving them the low-risk benefits of contingency was ultra-high risk for us. I completely stand by Gene’s assessment.

    But I’d love to hear more from Mr. Heller about how he and others have done drafting of patents on a contingency basis. Is it contingent upon certain commercialization milestones such as revenue? How long did it take, etc.? I can understand doing this for a dynamic start-up with capable leaders and investors behind it — doing IP for options in a promising company might make a lot of sense — but doing it for an inventor with a billion dollar twinkle in his eye and a poor prior art search is a tough model to live on.

    Meanwhile, the IP workers you find here are likely to be very pro-inventor, especially Gene, and being hostile to your allies is simply misdirected. If contingency makes sense, nobody is stopping IP attorneys from doing that. But remember that it’s not just the patent that they have to believe in in order to have any hope of future payment, and don’t be angry if they like almost every other service provider and vendor in the world would rather be paid now with certainty rather than with remote and elusive future hope.

  87. Tesia Thomas July 10, 2017 8:02 pm

    And I said Google doesn’t want the same fate as Cisco with Waymo.

    So they backed out of a lot of IP infringement claims against Uber.

    If Google really believed in the patent system then it would not be asserting mostly trade secret violations UNDER CALIFORNIA JURISDICTION OF ALL PLACES and taking back IP infringement claims.

    The fact that the tech giant is screaming over trade secrets is evidence that it places value on those most of all.

  88. Jeff Lindsay July 10, 2017 8:06 pm

    @Angry Dude, Eric, Tesia, and others: Gene and many IP workers who enjoy his blog are some of the best advocates for inventors that you will find. Your anger toward us is misdirected. We agree that the current system is hostile and unfair in many ways and needs to be fixed,and Gene and his team here are some of the real leaders helping to drive awareness and bring reform.

    I actually have a few patents and applications myself and know the pain of having a good invention and business opportunity that is hindered by the patent hostility of the USPTO. In addition to some corporate experience working with outside inventors at a global consumer products company, I have several years of experience helping inventors on a contingency basis and know the risks well, though the risk was that of my former boss, Cheryl Perkins of Innovationedge.

    Cheryl was Chief Innovation Officer at Kimberly-Clark and named one of the world’s top champions of innovation by BusinessWeek. She formed a daring start-up that was more pro-inventor that any organization I’ve seen. As part of the early business model there, we took on inventors with great inventions on a contingency basis, with the goal of using our open innovation experience and network to help them rapidly commercialize their products, and all the research, marketing, IP analysis, pitching and selling was at our expense, with the hope of later getting a cut when a major player licensed and commercialized their invention. They often had some IP in place. If patent filings were needed, I’d do them, and while Cheryl would charge some quite low fees for the heavy time investment this would require (the patent could have value for 20 years but they could ditch us as a partner if they felt we weren’t delivering, so there had to be some compensation for the patent work). It was a very gutsy and generous business model. We had to be very choosy, but we really wanted our inventors to succeed and became friends and champions for them. I don’t think you will ever find a more passionate and committed champion of lone inventors and start-ups than Cheryl, nor a more fair, generous, and pro-inventor business model than the contingency operation we ran. It was in many ways a remarkable charity, and was perhaps driven more by passion for innovation than a way to make money. The contingency model proved very difficult to justify commercially, IMHO. But we learned a lot about the pains inventors face and became extremely sympathetic to their plight. We even wrote a book with related content – Conquering Innovation Fatigue, with a lot of material about the pains inventors face.

    Eric, Angry Dude, Tesia, a patent by itself creates no value. The value comes when it protects an invention that is being adopted widely and has been or will be commercialized by a business. It’s easy to go from an idea to a patent, but there is a big journey from patent to WEALTH creation. That journey requires a business and sales and marketing by someone. We were not investing in an invention alone, we were also investing in the inventor. If the inventor was unstable, unreliable, or dishonest, there was no hope. They will have to make business decisions to close a deal with an interested company, and if they are delusional or insist on inappropriate control or whatever, the deal will fail. Contingency means investing in the person or the team, not just the invention. If they are going to form their own business, they don’t need to be a brilliant CEO, but they need to hire one. If they are going to license to a partner, they need to make rational business decisions nonetheless. Delusional valuations of the invention, unreasonable demands, strongly negative behaviors, etc. can all kill the deal.

    One of the biggest risks for doing this kind of work on contingency is the likelihood of the client not paying up after commercialization occurs. Some clients will find ways to avoid paying the promised contingency fee. As an innovation firm passionate about helping inventors, we had no desire to sue our our clients. Plus who wants that kind of negative publicity? After doing much to help some great inventors with great concepts, it was painful to be cheated. One never even paid the small fee for the IP we helped them create and they still own. I had four great years there (before an unresistable opportunity swept me away) and cherish the experiences I had with inventors, some of whom I am still close to and still cheering for, but we learned that going the extra mile for inventors and giving them the low-risk benefits of contingency was ultra-high risk for us. I completely stand by Gene’s assessment.

    But I’d love to hear more from Mr. Heller about how he and others have done drafting of patents on a contingency basis. Is it contingent upon certain commercialization milestones such as revenue? How long did it take, etc.? I can understand doing this for a dynamic start-up with capable leaders and investors behind it — doing IP for options in a promising company might make a lot of sense — but doing it for an inventor with a billion dollar twinkle in his eye and a poor prior art search is a tough model to live on.

    Meanwhile, the IP workers you find here are likely to be very pro-inventor, especially Gene, and being hostile to your allies is simply misdirected. If contingency makes sense, nobody is stopping IP attorneys from doing that. But remember that it’s not just the patent that they have to believe in in order to have any hope of future payment, and don’t be angry if they like almost every other service provider and vendor in the world would rather be paid now with certainty rather than with remote and elusive future hope. And seeing an inventor after years of frustration finally see his or her product commercialized with our help was one of the choices experiences. Makes a of pain worthwhile. I think Cheryl still does a lot to help inventors and there may be opportunities there for the right inventions and right inventors to get further help, though I’m out of touch with their current operations.

  89. Tesia Thomas July 10, 2017 8:08 pm

    @Jeff Lindsay,

    I don’t care about contingency.
    The only thing we disagree on is why attorneys don’t take patents on contingency and that doesn’t matter.

    Cisco, Google, me, angry dude, Pro Se, etc all paid upfront for our IP.
    We didn’t get contingency.

    How valuable are any of our patents?
    As I said, you’d expect a large multinational like Cisco to have defensible IP but they don’t.

    I’m not attacking attorneys. I’m saying your work product is more worthless than not and for every client.
    So if you charge money for the worthless work product then expect no one to want to pay.

  90. Jeff Lindsay July 10, 2017 8:09 pm

    Ooops, something went wrong with comment 83 . Just posted a couple of lines but somehow the whole previous comment was added again. Could that and this be deleted, please?

  91. Anon July 10, 2017 8:45 pm

    Thank you Jeff.

    For your post and your past efforts.

  92. Tesia Thomas July 10, 2017 8:51 pm

    Look, I’m sorry IP attorneys but if Google wins this Trade Secret fight against Uber then that’ll be the last strike for patents.
    Under California law (well I just looked up that most states have this, didn’t realize that), the UTSA makes injunctions easier and penalties actually take effect. Unlike with patent law.

    I could still invent so long as I don’t disclose the invention in a patent.

    I think that maybe patent attorneys will suffer more than inventors now.
    Inventors can just switch to trade secrets.

    Patent attorneys need patents.
    I don’t have to pay an attorney anything for a trade secret. I just need an employee contract.

    Wow. Yeah. Attorneys will suffer more. I just realized trade secrets are cool.
    Even for mechanical tech the trade secret is for manufacturing.

    Maybe Google’s trying to eliminate patents because it doesn’t like patent attorneys. Haha

  93. jbavis July 10, 2017 9:04 pm

    Anon @ 78,

    Evidently you’d rather make unhelpful snide remarks rather than address the 3 issues I put forth in #73. Telling.

  94. Tesia Thomas July 10, 2017 9:05 pm

    But it contributes to employee slavery.
    So that might be the software giant’s end goal.
    They just don’t like competing for labor. It drives up the price of doing business.

    Just strangle employees with contracts. It’ll be like old times where employees kill themselves when they lose their jobs because their mobility will be so limited.

    Everyone knows SVs biggest problem is finding great SWEs and affording them. H1B visas and stuff…

  95. jbavis July 10, 2017 9:28 pm

    Anon, what is the difference between an inventor complaining about the sorry state of patent affairs and you as a patent attorney complaining about the mere thought of helping inventors? It really would be nice if for JUST ONE TIME you would stop with not answering questions and beating around the bush and instead make a positive contributions to the conversation such as provide feedback or solutions to move things forward – or as you said “I would ask you to kindly STFU”.

  96. Tesia Thomas July 10, 2017 10:13 pm

    🙁
    It’s just corporate control.

    I even watched Apple Ceo tell Trump that they need more skilled tech labor as his main issue during the last roundtable with all the SV tech giants. He didn’t say patent trolls.
    (The one where Musk didn’t show up because of Trump not signing the Paris accord.)

    Maybe we’ve all been battling the wrong thing. Maybe defeating patents is a strategy, not against the inventor, but against the employee.
    Weaken the patent system and bolster the trade secret system because then employees can’t easily leave to start competing firms. The huge trade secret legislation did just pass last year and the Stanford people (Lemley) love trade secrets. I read on Patently-O some of his words about them. He thinks they’re great for innovation. Lol

    This article talks about the tech talent wars in Boston:
    http://www.bostonglobe.com/business/2016/02/19/the-war-for-tech-talent-escalates/ejUSbuPCjPLCMRYlRZIKoJ/story.html

    It kind of corroborates my new idea about all of this.
    We independent inventors are sad for nothing. I think if we have integrity then we need to fight for the sharing of concepts and innovations to allow for a better world.

  97. Tesia Thomas July 10, 2017 10:23 pm

    Ooh look, Apple and Google tried this an illegal way.
    Yup. My guess is they’re going a roundabout way now.

    http://www.economist.com/news/business/21709574-tech-firms-battle-hire-and-hoard-talented-employees-huge-pay-packages-silicon-valley

  98. Edward Heller July 10, 2017 10:26 pm

    All, startups don’t have a lot of cash to spend on patent lawyers, but they need them. What they offer are redeemable notes where one gets paid upon certain events or when the company is acquired. Usually amount is well in excess of what one could charge hourly.

    Another option they offer is percentage of ownership.

    Either way, the payoff comes when the company begins to make it big. Either the stock hits the roof or they get acquired.

    Of course, not all startups are successful. So the rates need to reflect the percentages and risks.

  99. Edward Heller July 10, 2017 10:30 pm

    And, BTW, if the company’s success depend on the quality of the patents, and one’s compensation is tied to the company’s success, then one is motivated to do an excellent job — far more than if one is just being paid for his time.

  100. Anon July 10, 2017 10:47 pm

    Clearly jbavis you are not familiar with my postings here, else your plea of “just one time” would not have been made.

  101. Mohammed July 11, 2017 12:49 am

    We at Mson-IP do contingency based prior art searching (patent invalidity searching etc) because many customers have experienced poor work product from renowned companies as well. I think its a win-win scenario. Also it shows your positive attitude towards customer satisfaction rather than just billing hundreds & thousands of dollars with everything on air. I think it applies very well for patent searching entities.

  102. Tesia Thomas July 11, 2017 7:26 am

    I think a lot of comments (of some angry IP attorneys and agents) are being throttled.
    All I’ll say is no inventor really cares about contingency fee representation.
    How much do I have to say this?

    All of the inventor comments here are from people who paid upfront for their IP.
    And, now, we don’t want to pay anymore.
    So, we won’t go after patents anymore.

    Obviously, we’ll just resort to trade secrets because it’s cheap and, frankly, that’s where the legal system is showing the most promise.
    This cuts out attorneys anyway.

    Oh, and this is just in the USA!

    Obviously the Google’s and Cisco’s are thrilled with attorney work product either because their patents have been killed in PTAB.

    PTAB is not the business world. That is supposedly dependent on patent quality.

    All of these comments from attorneys about it not being their fault for the applicant not having success in the business world misses the point that:

    1. People file patent before starting companies
    2. PTAB is not the business world
    3. Commercial success leads to competitors filing IPR

    You’re basically saying entities like Cisco shouldn’t be angry at the patent system for their patent being IPR’d to death.
    They paid tons of money and have commercial success…and ultimately their patent was indefensible.

    Just recognize that inventors are attacking the work product of a patent as meaningless. Not attorneys.
    Attorneys are helpless but they do their best work.

    My attorneys are great. They wrote great PCT for me and I paid them a lot to write it. But, I know the IP is worthless if the PTAB exists.

    It’s just not work worth paying for because patents go up in flames in the PTAB.

    Attorneys, could you have prevented this with your work product?
    http://www.ipwatchdog.com/2017/06/25/ptab-killing-fields-virnetx-patents/id=85042/

    NO!!
    That’s our (we inventors’) point!
    No matter how amazing you are or how much we pay you and when, our patents will die at the hands of a bitter competitor.

    We’re talking about a procedure that is debatable to be unconstitutional.
    It’s no one’s fault and everyone’s burden.

    As Patent Investor said, “There seems to be no prior art which will not invalidate the patents, any patent, every patent.”

    No one is blaming attorneys.
    We inventors are saying we’re all helpless and aren’t going to support the comfort (to our demise) of others in this system that we’re bearing on our backs.
    We inventors have to stop being prey. We have to stop being there to get money from.

    If attorneys don’t take calls from independent inventors, don’t worry. Google and Cisco soon won’t be calling either.
    Between regulatory conditions and PTAB, pharma isn’t filing a lot.

  103. Tesia Thomas July 11, 2017 8:03 am

    Just being Devil’s Advocate here…
    If the PTAB is about patent quality then the only people inventors can blame for a PTAB killing are the law, the examiner and our attorneys- the people who wrote and went through the patent.

    “If you’d written a higher quality patent then it’d have survived.
    I paid what you billed me. If you needed more money to write a better patent then you should’ve asked for it.”

    Right?

    Business success happens outside of and in spite of the PTAB process.
    Patents have always been outside of commercialization. They’re just a great option for defense if commercialization goes well and people trying to encroach.

    But, again, I’d be fine with paying for defensible patent wall art.

    Alas,
    Inventors will resort to trade secrets and no one will have to think about not paying patent attorneys, office actions, PTAB, etc.
    Trade secrets mean less stress and less initial legal fee money.
    Seems to solve all inventor ‘whining’ here.

    Trade secrets it is!

  104. Edward Heller July 11, 2017 8:14 am

    Tesia, is there any evidence that the PTAB is not, on the whole, biased against patent holders?

  105. Tesia Thomas July 11, 2017 9:15 am

    @Edward Heller

    And attorneys!

    Really PTAB makes a mockery of your profession and work.
    The way PTAB is set up to supposedly be about patent quality, inventors should be able to demand a refund due to ‘poor work product’ of their attorneys and agents.

    Forget about contingency. How about a refund?

    “You didn’t construct these claims well enough to get around the 101 assertion that everything comes from the earth and is thus anticipated by NATURE!”

    “This specification was poorly written in lieu of the Shakespeare and thousands of best selling authors that our competitors strung together in their PTAB filing.”

    Can’t attorneys see from prior art searches those same references cited against people in PTAB proceedings?

    “30 years of patent law experience and you can’t properly string together 5 million references to form better claims for me that beat all 5 million references strung together and cited at PTAB!”

    Exaggeration but I hope you understand.

    Oh and Mr. Patent Agent, I’m 22 years old and I have DoD researchers and top uni PhDs jealous of my research and threatening me.
    And I saved up $55K to put towards my business.
    My mommy and daddy haven’t given me any money and I live on my own. I’ve invented for my employer and obviously have done well enough to afford even that at my age when most people are making $55k per year before tax at my age.
    I know the value of a dollar and right now I’ve ascertained that I’m running out of money and that there’s no value in paying patent attorneys because all patents do is multiply the amount of money I need in the future and the financial burden of starting a business for sunk costs. In the end I likely won’t even have a patent no matter what I sell.

    I’m fighting corruption and abuse of power everywhere.

  106. angry dude July 11, 2017 9:50 am

    @Jeff

    “Eric, Angry Dude, Tesia, a patent by itself creates no value. The value comes when it protects an invention that is being adopted widely and has been or will be commercialized by a business.”

    You just don’t understand how hi-tech works in real world
    Some little dude in his garage or university lab or some incubator comes up with something new and really useful – for example, a new modulation method for transmitting data over wires or over the air
    As soon as the industry at large learns about dude’s achievement (through patent publication or conference presentation or any other way) they start using the invention WITHOUT thinking twice
    So anything new and useful WILL BE commercialized , but not by you –
    the inventor
    And for as long as you, the original inventor, can’t to stop them from using your patented invention without license you have absolutely NO chance of starting your own business – cause nobody will invest

    It’s that simple

    Thus – trade secrets (if you can keep it a trade secret )

  107. angry dude July 11, 2017 10:03 am

    @Tesia Thomas

    “Stanford people (Lemley) love trade secrets. I read on Patently-O some of his words about them. He thinks they’re great for innovation”

    The Founding Fathers are rolling over in their graves…

  108. Benny July 11, 2017 10:05 am

    “Some little dude in his garage…” not on the planet I inhabit.
    RND team comes up with a new design, management asks legal counsel to squeeze a patent of it so they can swat the competition over the head with it, Patent attorney bats the examiner about a bit till a patent issues. When it comes to revocation (rather than cross license, which happens much more often), PTAB are basically criticizing examiner for allowing patent and not finding prior art. You could also criticize management for trying to patent where there is no true innovation, (think it doesn’t happen? you don’t read enough applications) or the patent attorney for going ahead rather than recommending defensive publication.
    That little angry dude in the garage is the exception rather than the rule. If dude offers to sell his patent outright for cost+ he may not get rich but at least he’ll turn a profit.

  109. Tesia Thomas July 11, 2017 10:36 am

    @Benny,

    I’m living proof and so are all of my inventor friends.

    Plus, I already mentioned what you state when I said that all of my competitors patent iterations which are definitely invalid with PTAB. If only someone would challenge them….

    @angry dude, 106:
    Exactly what’s happening to me.

    All the money in the world can’t save me or my competitors and their worthless iterations in the PTAB.

    The best defense against PTAB is no getting there. Either no patents or rampant collusion.

  110. Mr. Patent Agent July 11, 2017 12:59 pm

    @ Tesia Thomas

    Maybe you are paying too much for your legal fees. There are practitioners out there who know that they are doing, yet can perform top-notch work and do not charge as much. Even some practitioners will help you for a reduced rate (certainly not for free or on contingency) but then really run up the bill with Office Action responses. Rather than giving up on patents or practitioners, consider finding a more affordable one, especially when you are trying to establish a start-up.

  111. Tesia Thomas July 11, 2017 2:38 pm

    @Mr. Patent Agent, 110:

    Thanks for the advice.
    I don’t think I’m overpaying. I think, pessimistically, that I’m paying for great patents that will be defeated by PTAB.
    The $55K includes production, samples, travel so far. It was under $15K for the PCT.

  112. Benny July 11, 2017 3:13 pm

    Tesla Tom,
    you may yet learn that wealth is created by making and selling products, not by faffing about with lawyers.

  113. Tesia Thomas July 11, 2017 3:20 pm

    @Benny, 112:

    Services, too. You can provide or perform services to create wealth.
    And, if I’m faffing and losing wealth then so are the attorneys.

    But, we could make a talk show…

  114. angry dude July 11, 2017 3:56 pm

    @Benny

    dude, you are clueless
    it is you and not me who lives in some made up world of RND teams coming with breakthrough inventions

    truly brilliant ideas come to one persons head, be it in the garage or in university or corporate lab, and not to the entire RND team at the same exact moment:
    flash of genius that’s what it’s called if you are not familiar with the concept
    and technically since US patent has a legal requirement to list only true inventors most of those”RnD team” patents are legally invalid cause if you depose those people the truth will come out – most of those teammates contributed nothing or next to nothing to the invention conception and were just written in later
    but this of course is only true for groundbreaking concepts, not the incremental junk your “RnD team” submits to PTO to water down patent system
    but who cares anyway

  115. angry dude July 11, 2017 4:08 pm

    Tesia Thomas@111

    You might be throwing good money after bad
    if there is any way you can keep something important a trade secret – then do it, even if it lasts for just 6 months its still a much better deal than patent – and its FREE

  116. Poesito July 12, 2017 12:54 am

    Gene, if you are going to write provocative posts like this which elicit many comments could you please add some navigation features to make it easier to follow the thread? For example, a button which links to the top of the comments and another to the most recent. Thanks.

  117. Vince August 3, 2017 3:50 pm

    Wow, I feel like an idiot wading into this discussion since it all seems to be centered around hi tech inventions and software. My invention is a very simple sports equipment product. Does all of what you’re saying apply to my situation too?

  118. Benny August 4, 2017 12:31 pm

    Vince,
    a bit of advice. Never use the phrases “my invention ” and “very simple” in the same sentence again.

  119. Vince August 4, 2017 12:41 pm

    Ok thanks for the advice. I guess I’m out of my element with all of you geniuses 🙂

  120. Gene Quinn August 4, 2017 3:09 pm

    Vince-

    I’ll echo what Benny said. The problem with saying your invention (or any aspect of it) is “simple” is the next question a patent examiner will ask is — “then why isn’t it obvious?” So don’t think of your invention as simple even if it is to you. Of course it seems simple to you because you are the inventor. What you have is “an elegant solution” not something that is “simple.”

    As far as whether what I wrote applies to “simple” inventions, it does. There are just so many hurdles between invention and making money to make it worthwhile for a patent attorney to engage in contingency based representation to obtain a patent.

    -Gene

  121. Vince August 4, 2017 3:12 pm

    Thanks for clarifying Gene.

    -Vince

  122. Tesia Thomas August 5, 2017 2:16 am

    As evidenced by Josh Malone, the hurdles inventors face now are realized when they START making money.
    And it’s all due to the attorney’s work product and the attorney’s part.

    If you took Josh’s patents on contingency then youd have made money. But the patents were invalidated.

    I don’t think that’s something you can put on the inventor.
    It’s one thing to take risks and it’s another thing to accept payment for something that doesn’t survive scrutiny ( for whatever reason even if the reason is beyond control.)

    Presuming validity was security for the patent and attorney work product quality.

    Now getting a patent from an inventor perspective is merely donating to attorneys and USPTO.

  123. Les Virany, Patent Agent August 19, 2017 1:05 pm

    @angry dude

    It sounds to me like you are under the impression that you need a lawyer to apply for a patent.
    I’ll never understand why people believe that.

    Patent attorneys are Lawyers, hence the name. If you hire one, you will pay lawyers’ rates.
    But the PTO is not not a court.

    Patent Agents on the other hand, just like Patent Attorneys, are licensed to represent you before the PTO.
    On average they charge something like half as much or less because they do not have the overhead
    associated with a law practice.

    Intellectual property is like any other property. You don’t need a lawyer to buy a car or house.
    You only need a lawyer when the car gets damaged or stolen, or otherwise becomes implicated
    in matters of law. Likewise, you don’t need a patent attorney until your intellectual property is somehow at
    risk because of legal matters. These typically include two circumstances.

    First, you might want to appeal the decision of the PTO to the courts because, after the ample
    iterations available under PTO practice, they stubbornly refuse to grant you the patent you think
    you deserve. If a car dealer stubbornly refused to sell you a car for no good reason,
    you might take him to court as well.

    Second, your IP might be infringed upon and you want to sue an industry adversary for damages.
    If your neighbor decided to widen his driveway across your front lawn, you would want to sue
    him too.

    Hire a patent agent to apply for a patent and don’t spend money on lawyers until you need to.

  124. Patent Geezer August 24, 2017 5:31 am

    Across the span of multiple decades (more than 2…and approaching the next one rather soon), I’ve done enormous amounts of pro bono work for many individual inventors / very small entities, as well as what I’d designate “effective pro bono work” or “theoretical contingency work” for such parties, which means that the magnitude of any promised or hoped-for financial payoff never occurred, and even break-even payoff with respect to up-front drafting fees typically never occurred. I’ve also known other patent attorneys who have bent over backwards multiple times for individual inventors / very small entities during their patent careers. Assertions that the typical patent practitioner simply disregards and does not care about the plight of individual inventors / very small entities is not borne out by multiple decades of my own experience.

    Would I undertake a future contingency relationship in the context that individual inventors / very small entities likely desire? Possibly, but at this point if and only if my own analysis indicates that the amount of future compensation is justifiable in view of, among other things (i.e., the following is not a definitive or comprehensive list): (a) the amount of time I’d spend undertaking comprehensive searching for and analyzing prior art; (b) the amount of time I’d spend drafting and prosecuting one or more patent applications (e.g., parent plus divisional applications, in one or more jurisdictions); (c) the amount of time I’d spend undertaking a comprehensive FTO analysis across each jurisdiction in which your invention would likely be manufactured, sold, or imported, or where your patent rights would be licensed in order to ascertain what real-world impediments may exist that can derail the realization of a hoped-for payoff; (d) the amount of time I’d spend arriving at a reasonable estimate of the likelihood that future patent rights could be licensed or sold, and to whom, for what possible amount(s) and under what payment conditions; (e) payoff currency depreciation (i.e., inflation) over time versus expected / estimated payoff delay; and (f) the financial return I’d reasonably be able to generate on my own by investing a portion of what I’d charge up-front for the time spent undertaking (a) through (d).

    The total amount of work and the total dollar amount (or total fees in any given currency) associated with (a) through (f) is not trivial, and is almost certainly larger than what initially crosses the minds of individual inventors / very small entities.

    If as an inventor you already had (1) at least a reasonable provisional patent application filed, and (2a) some independent angel investor funding in place and/or (2b) a successful track record of turning one or more innovations into financial gain, i.e., demonstrable profit, within a reasonable time period, such considerations would shift my position in favor (ooops – “favour” for you UK-derived purists) of some type of contingency arrangement.

    Note that nothing precludes any individual inventor / very small entity from performing one or more activities that the patent attorney(s) who represent them would perform, and if inventors are inclined to pursue such activities because their perceived value of patent attorneys is very low, then they can certainly proceed down such a path. At the very least, independent inventors / very small entities can consider having a patent attorney review what they independently generated, such that the patent attorney can provide useful recommendations / feedback for a low-to-moderate fee.

    Is the US patent system massively screwed up, particularly with respect to the plight of individual inventors / very small entities? Definitely. At present, I’d say we’ve entered an “Alice down the rabbit hole” situation, even for large entities.
    Independent inventors / very small entities should consider filing in countries outside of the US, where the “craziness pendulum” has not swung so far, reasonably good patent rights enforcement exists, and market potential for their invention exists.

  125. Nahum August 24, 2017 12:54 pm

    “Patent Geezer” — how I contact you in private? I’d like to talk. My company is OptoKnowledge.com.

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