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Patent Lawyer

What is the difference between a patent attorney and a patent agent?

The majority of patent practitioners in the United States are patent attorneys. A patent attorney is defined as someone who is admitted to practice before the courts of at least one state in the U.S., and who is also admitted to practice before the U.S. Patent Office.

In contrast, a patent agent is someone who is admitted to practice before the U.S. Patent Office but who is not provided any proof to the U.S. Patent Office that he or she is admitted to practice before at least one court in the United States. Thus, some patent agents (the ones who happen to be attorneys also) could become patent attorneys simply by filing the appropriate papers with the U.S. Patent Office establishing that they are also admitted attorneys. Many patent agents are people with strong technical backgrounds who have not attended law school or who are in the process of attending law school.

Some people also use the term "patent attorney" to include attorneys who are not admitted to practice before the Patent Office, but who represent parties in patent litigation and other legal matters. Such attorneys may or may not have technical backgrounds. (Note that an attorney that is not admitted to practice before the Patent Office may represent parties in patent litigation but may not prosecute patent applications. On the other hand, a patent agent may prosecute patent applications but may not represent parties in patent litigation.)

For a particular inventor who wishes to apply for a patent, there is no simple answer as to whether it is better to use a patent attorney or patent agent. It is our experience that some patent practitioners who have never set foot in a courtroom and who have never litigated patents tend not to give as much attention as they might to aspects of the wording of patent claims that could make a difference in the strength of the claims if litigated. Thus, for the inventor who wants to get patent claims that have the strongest likelihood of prevailing in litigation, there is something to be said for having at least one patent practitioner involved who has litigated patents. Obviously this is an oversimplification, and there are many patent attorneys and agents who have never litigated a patent but who nonetheless are very good at thinking about how to make the patent claims as strong as possible for litigation.

It might be thought that this factor makes a patent attorney always a better choice than a patent agent, but such is not necessarily the case. After all, it is also very important that the patent practitioner be someone who understands the technology of the invention. If your stark choice is between a patent agent who understands your invention and a patent attorney who does not, in general it would be best to go to the patent agent to prepare the patent application. Some commenter's have also noted that on average a patent agent does not charge as much per hour as a patent attorney. It is our experience that the hourly billing rate of a patent agent or patent attorney is not a particularly important number. After all, someone who is very experienced at drafting patent applications may be able to prepare an application in a shorter amount of time than someone who is inexperienced. And someone who understands your invention quickly will be able to prepare a patent application more efficiently than someone who requires much study.

It is important not to forget that the applicant's selection of a patent professional is not irrevocable. At any time prior to filing or during the pendency of a patent application the applicant may change counsel, by simply granting a power of attorney to the new patent attorney or agent.

If there were an efficient market for the provision of patent services, then perhaps one could be sure that a higher price would indicate that one is getting more value. Of course, there is little reason to think that the market is particularly efficient, and there are probably some patent agents and attorneys who charge very high hourly rates and yet are not necessarily as good at their jobs as others who charge less.





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