What Legal Service/Advice can you get from a Patent Agent, and is it Confidential/Privileged?

Patent Agent Legal Services? When it comes to legal rights, in pertinent part, property rights, there are licensed professionals who offer help in exercising or protecting your rights. Lawyers. For patents there are patent practitioners (agent or attorney) to deal with these special rights.

Patents are Intellectual Property and need a Patent Practitioner not an Attorney:

Patents are a kind of property, specifically intellectual property. A patent, the legal right claimed under Article I, Section 8, Clause 8 of the US Constitution. A patent is the right to prevent others from making, using, or selling your invention. Property rights are your rights to enforce. You can do this yourself, but usually it is far more effective and efficient to hire a professional as the patent laws are complex and detailed.  An improperly filed and/or drafted patent application may prevent you from asserting your rights against potential infringers. 

The professionals that deal with personal property, real property, and intellectual property are lawyers, with one exception. Among the bundle of intellectual property rights are  patents. The USPTO issues patents, and registers professionals to practice before the office. Being a lawyer does not permit them to practice before the USPTO. Registration requires a separate application and examination process. To be allowed to communicate with the USPTO (“prosecute”) on a client’s behalf regarding a patent, an attorney needs to take an additional bar exam.

Patents need a Patent Agent or Patent Attorney:

Only those licensed to practice before the USPTO can prosecute a patent. Only patent practitioners (patent agents and patent attorneys) can prosecute patents; non-patent attorneys cannot. Whether a patent practitioner is agent or attorney is determined by whether they are a member in good standing of some state’s legal bar. In other words a lawyer. Thus, while patent agents prosecute only patents, patent attorneys can also prosecute other legal rights. 

Legal Advice on Patenting comes from Patent Agents or Patent Attorneys:

Patent agents are not authorized or licensed to give legal advice in general. With that said, the US Supreme Court has held that patent agent activities incident to the preparation and prosecution of patent applications, even beyond the representation before the USPTO, like advising on potential patentability of an invention is permitted.

Patent agents can give legal advice during the drafting and prosecution of patent applications. However, this is not open ended. The usual forms of this legal advice are opinions on prior art, novelty, patentability, patent validity, and infringement. Patent agents can help with ownership and licensing by clearing up legal misconceptions about patents and recording assignments. Patent agents can also handle reexamination proceedings before the USPTO if the prior art shows that the claims should be narrowed or cancelled. 

For stuff like Infringement Lawsuits, you need an Attorney:

However, for some patent related matters like lawsuits for infringement, assignments, or employer/employee rights, you should discuss these things with an attorney who specializes in that area. Your best attorney choice may not be a patent attorney. I maintain relationships with attorneys I trust should you need to engage an attorney and need a referral.

Communication with a Patent Agent is Confidential (i.e. covered by client controlled privilege):

The advice and interaction with a patent agent is covered by the same confidentiality standard as an attorney. Client communication is held in confidence and is protected under privilege. Patent agents hold the same basic professional liability insurance as that held by attorneys, just limited to the practice of patent prosecution. 

Gregory D Carson, USPTO Registered Patent Agent

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