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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