September 22, 2019 Feature

Ethical Representation of Every Inventor, Whether Paying or Pro Bono

Mark R. Privratsky

©2019. Published in Landslide, Vol. 12, No. 1, September/October 2019, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

Attorneys appreciate their careers, clients, colleagues, and overall legal lives, but they may still find themselves seeking something more. To find additional fulfillment, many attorneys immerse themselves in their communities by providing pro bono legal services to clients in need. In the pro bono world, a transactional attorney is able to cover general corporate areas even if the specific question posed by the pro bono client does not fall directly within the attorney’s usual practice area. Likewise, litigators typically have various options for assisting pro bono clients by appearing in court, including for small claims, housing, harassment, immigration, or criminal defense, or by assisting within another dispute resolution proceeding. For in-house and private practice patent prosecution attorneys, however, representing clients in front of the United States Patent and Trademark Office (USPTO) on a daily basis likely has not prepared the attorney to fight a deportation order or defend an unlawful detainer. Offering services in a discipline in which one does not normally practice may be stressful and even create a potential for mistakes. A need therefore existed for years for patent attorneys to be able to help low-income inventors in the area of patent prosecution.

The other side of the attorney-client coin presents a compelling need as well. Inventors seek the fulfillment of their dreams of one day seeing their great inventions for sale on the shelves of local retail establishments, or in today’s world, the Internet. These inventors understand that a significant step to protecting their innovation is to obtain a patent thereon. When faced with the complex and sometimes expensive process that patent prosecution may be, however, low-income inventors realize that they must proceed pro se or not at all. Fortunately, many inventors apply the same resolve and determination they used to conceive their inventions and tackle the problem head-on. Unfortunately, the patent prosecution process is not necessarily suited for the novice. Despite the significant efforts the USPTO has made to educate independent inventors and to make its website more easily understood, the inventor may nevertheless find the patent process confusing and complicated. These inventors fit the mold to be the perfect clients for the patent prosecution attorneys seeking to offer pro bono services in their respective fields.

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