A patent consultation with an attorney is the first step to determining whether your invention or creation can be patented. An experienced lawyer can help you develop a plan to protect your intellectual property (IP).

Aspects of a Patent Consultation

A good patent consultation will cover the following elements:

  • Defining the invention. The fundamental components of your creation will help determine the potential market of buyers and investors.
  • Prior art review. This is done to discover other patents that are applicable to your invention. If your work is too similar to prior art, it will not be eligible for patent protection.
  • Explore methods of IP protection to determine which is best for your invention. Options include trade secrets, copyrights, trademarks, and patents. The attorney will explain each form of protection and how it may apply to your situation.
  • Foreign protection. Certain steps must be taken to secure international protection for your invention. This includes filing a patent application before sale or public disclosure of the invention. It may also include applying for coverage under the Patent Cooperation Treaty (PCT).
  • Ownership issues can arise if you invented the item in question along with someone else if others have invested in the invention, and if you invented the creation as an employee or an independent subcontractor. Resolving this issues early can prevent costly disputes later.
  • Discussion of the patent process, including major steps and the timing of each. This will also include answers to your questions about this sometimes overwhelming process.
  • A recommended course of action and estimated fees will be presented after the consultation.

Reasons to Hire a Patent Attorney

Many inventors are tempted to save money by applying for a patent without legal help. However, a good patent attorney can help you in a variety of areas, including:

  • Patent search to determine if a patent already exists for a similar invention
  • Narrowing the scope of the patent to prove it is unique and thus patentable
  • Preparing and filing the patent application, which must include a thorough description of the invention and how it can be used
  • Revising and resubmitting patent applications that are rejected

Although you may be hesitant to pay the costs of hiring an attorney, doing so can save you substantial time and money attempting to protect an invention that does not qualify for a patent.

Cost of a Patent Attorney

Before hiring a patent attorney, it's important to understand the general cost. However, this will vary depending on the type of invention and many other factors. Most patent lawyers charge for services in one of the following ways:

  • An hourly fee is paid at a certain rate for the number of hours it takes to complete the process. In many cases, you may need to provide an upfront payment for a designated number of hours, then will be billed monthly for additional hours. With this method, the hourly rate will be charged for meetings, phone calls, and emails as well as back-end work.
  • Some practices charge a flat rate for patent applications. This means a set price paid up front will cover the entire process no matter how long it takes.
  • A capped fee is similar to an hourly rate but includes a maximum number of billing hours.
  • Retainers are used if you need ongoing legal advice. This upfront payment is kept in a trust where it remains until the work is complete.

Although the cost varies based on type of practice, location, and experience, most patent lawyers charge about $380 per hour. This varies from a low of $275 per hour in rural areas to $800 or more in urban areas. Boston, New York, and California are the areas where patent attorneys are most expensive.

Solo practitioners tend to charge less than full-service firms do. Small business owners and individual inventors may be able to get legal advice for their patent for about $5,000, while the cost is closer to $15,000 for software companies and other advanced technologies.

Even if you're on a budget, avoid hiring the lawyer with the lowest fee. You must also consider experience in your industry, personal rapport, and customer service.

If you need help with a patent consultation, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Stripe, and Twilio.