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   lawyer vs. govt. in patents
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   Author  Topic: lawyer vs. govt. in patents  (Read 1726 times)
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Re: lawyer vs. govt. in patents
« Reply #5 on: Jul 22nd, 2006, 10:50pm »
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on Jul 22nd, 2006, 4:43pm, Bill Richards wrote:
I'm sorry, I'm not going to let this go!
sdahd83 said:  "but wouldnt all lawyers basically say its OK to continue with the process after the search because that way the lawyer can collect the fees of filling out the patent application (which is thouands of dollars for most)? if they said "no, its not OK since your idea violates an existing patent," then they wouldnt be able to collect the thousands in fees they charge of filling out the application."
This has got to be one of the most offensive posts I've seen on this Forum.  OK, sdahd83, so you're disappointed things didn't work out as expected.  It's your expectations that are the problem.  Nothing is ever certain!  But to accuse your patent attorney of such conduct as knowingly preparing a false search report to garner extra fees goes beyond the bounds of decency.  If you have any proof, let's see it.  Otherwise, stop the potentially libelous comments.

 
whoa! i am not accusing anyone of anything, i was simply asking.  just wanted to see if someone had a similar experience or if they heard of such unethical practices, because i can see it happening (not with my lawyer, but in general).  im not even at that stage yet.  i did talk to an attorney and i havent asked him to do a search yet.  i never claimed my lawyer did that, like i stated earlier, im not even there yet, and i might not get there either.  i found 4 products that are similar to my patent.  and he said, if i recall correctly, that he can glance at it but hell need to look more in depth, meaning he needs to do a search, which is fine because i dont know if my idea violates the current patents based on their content and functionality.  so again, im not accusing my laywer of anything.
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Re: lawyer vs. govt. in patents
« Reply #6 on: Jul 23rd, 2006, 12:22pm »
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I'll just add that searches are never "wrong", just always incomplete.  There's no way to search the entire universe of information that qualifies as prior art.  So, it's entirely likely that your attorney performed a perfectly legitimate search within the budget you authorized.  No foul.
 
And, I'd like to add that examiners are often wrong when they present their initial rejection.  So, it's no surprise that, despite conducting a pre-filing search, your first Office Action was a rejection.  It's expected.
 
The whole patent process is messy and inexact.  I see here and in my own practice instances in which the client (or prospective client or pro se applicant) doesn't fully understand the nature of that process and forms unreasonable expectations.  Indignation re the failure of such expectations often result.  Such indignation appears to be unreasonable and makes some people look like "problem clients" or "problem applicants."  The solution, I believe, is in education of the public about the process and mitigation of unreasonable expectations.
 
From the facts given, there's no reason to believe your attorney did anything less than perfrom perfectly competently and professionally.  Attorneys can never eliminate risk, only help mitigate and quantify risk.
 
Regards.
« Last Edit: Jul 23rd, 2006, 12:24pm by JimIvey » IP Logged

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Re: lawyer vs. govt. in patents
« Reply #7 on: Jul 23rd, 2006, 2:38pm »
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again,  my lawyer hasnt done a search yet.  plus, he has a fixed fee for searches; he doesnt charge more or less based on the depth of the search.  
 
but again, i was asking as a precaution, i havent even asked him to do the search yet, so obviously he hasnt filled the application.
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Re: lawyer vs. govt. in patents
« Reply #8 on: Jul 23rd, 2006, 3:12pm »
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on Jul 23rd, 2006, 2:38pm, sdahd83 wrote:
again,  my lawyer hasnt done a search yet.  plus, he has a fixed fee for searches; he doesnt charge more or less based on the depth of the search.  

 
Let me suggest that our answer to your question will not be nearly as informative or germane as your own practitioner's answer.   You ask a legitimate question IMO, but your question in both its phrasing and content indicates an unfamiliarity with patents and the patenting process.    Hearing your attorneys answer to your questions will help you decide if you've made the right choice of  practitioner and will also allow the practitioner to educate you some issues you appear to have confused.
« Last Edit: Jul 23rd, 2006, 3:13pm by Isaac » IP Logged

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Re: lawyer vs. govt. in patents
« Reply #9 on: Jul 23rd, 2006, 8:30pm »
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on Jul 22nd, 2006, 3:09pm, sdahd83 wrote:
you pay him/her to search for a patent but the govt. finds one that violates it, isnt that incompetency on the lawyer's part?

 
It could be considered incompetency (or ‘malpractice’ might be the better legal word).  Or, the existing patent you speak of could have been published after the patent search was completed.  Or, the notion that the patent should have been located by the patent search could be deemed somewhat unreasonable.  As Jim notes, all patent searches are incomplete – the idea is that the search should be reasonably complete.
 
Anyways, there are many hypothetical possibilities based on what you mention, and as has been noted there’s a pretty good chance that incompetence is not an issue.  But if it is?  Then forget about what you paid for the search, you might actually be able to sue the lawyer for a bit more than that.  And, as Isaac notes, a patent lawyer can also lose his license to practice if he does not fulfill certain ethical obligations.  Thus, most patent attorneys tend to be rather wary of the liability associated with a patent search.  Some attorneys on this board might be able to elaborate on this a bit more, for now here is a good, though slightly outdated link:
 
http://ipmall.info/hosted_resources/tools_strategies/bp97/eval1.htm  
 
Quote:
just wanted to see if someone had a similar experience or if they heard of such unethical practices, because i can see it happening

 
Your concern is still rather valid on some level IMO, as not all patent lawyers are overly noble – as with any other profession.  Personally, I have no first hand knowledge of an attorney deliberately offering a false search report to a client.  I have seen at least a couple of patent searches done by or for attorneys which I would consider to be a little iffy, regardless of whether they would hold up to scrutiny.  There have also been a couple of recent posters on this board who have claimed their attorneys discouraged them from contracting a patent search in conversation (one because the idea was supposedly “too good”).  I again have no firsthand knowledge of attorneys that discourage patent searches, but it wouldn’t come as a huge surprise to me.  If your attorney has already told you that he needs to do some more in-depth searching in addition to any research you have already conducted, that’s a step in the right direction.    
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