- Posted by MatadorAdmin
- On August 7, 2017
Our TV screens and computer screens are awash with people offering legal services on a contingent fee basis. Contingency fee services afford clients the opportunity to only pay for legal services if those services produce a successful outcome. This can be useful for those who have concerns about how to finance legal fees. And, given that many people’s only experience with a lawyer is when they have been injured – an area of law that is exclusively contingent fee – it is understandable why the public thinks that all legal work can be done on a contingency fee basis. However, practically no patent prosecutor will work on a contingent fee basis.
The most common type of legal work to be offered on a contingency fee basis is accident and injury litigation. The nature of these cases means that it is very easy for injury attorneys to quickly assess whether a case stands a strong chance of success. Most injury attorneys are able to estimate the chances of success after hearing a simple outline of the plaintiff’s claim. After a free consultation, an injury lawyer can choose to accept a case on a contingent fee basis or they can advise the potential client that the claim is unlikely to be successful. Filtering cases in this way means that personal injury lawyers are almost always able to recover their fees – my firm has a thriving personal injury practice, and we operate exactly in this manner.
On the other hand, it is impossible for a patent attorney to estimate whether an invention will eventually be successful and profitable. These attorneys are not able to filter cases out at a free consultation meeting because both the patent system and the general market are constantly evolving. There is also a debate as to what clients would consider to be a successful outcome: whereas most attorneys would consider a patent application to be successful if the application is approved, an approval does not make the holder rich or get them any additional money with which to pay their attorney.
Although the patent system tries to be fair to applicants, there is still a degree of subjectivity present in the process. Each application is viewed by a Patent Examiner who may interpret the law and the invention in a different way to that which is intended by the applicant. The site “examiner.ninja” showcases the vast difference in approval rates between examiners in the same art groups. In addition, the laws that surround patenting are not as clear cut as those which surround accident and injury compensation. In order to produce a successful patent application, an attorney is required to put in a lot of time and effort. The attorney will be forced to put in a degree of hard work to even understand the nature of the product or invention that they are being asked to help to obtain a patent for. It is impossible for them to know at the initial meeting whether similar items are currently being passed through the patent system or to know whether the product is likely to succeed in a changing global market. All of the above combines to make contingent fee patent prosecution services untenable.