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Monday, 25 June 2007

Professional standards and the individual inventor

The IPKat's friend and sole/small IP practitioner activist Barbara Cookson (Filemot), occupying a guest blog slot today, writes:

"Dennis Crouch of Patently–O draws attention to a newly disbarred US patent attorney, Michael Bender, in his post Individual inventors who will represent you now? The judgment in his appeal is here. US inventors are so frequently parted from their assets by invention promotion companies that the USPTO now has an official forum for their complaints.

Right: individual inventors are usually small, vulnerable and easy to manipulate - which is why they need special protection.

Bender had a lucrative ($30,000 a month in 1993) deal going with American Inventors Corporation (AIC). He had taken over from an attorney who settled with the USPTO for a 5 month suspension from practice for his part in AIC’s money back guarantee that promised a refund if a patent was not issued. AIC got US design patents (something like a registered design) instead of the real thing, without explaining the difference. Bender felt that he was not guilty of misconduct because, when he took over the practice, he sent the clients an engagement letter, but the US Court of Appeal did not think much of his brief discussion of the difference between design and utility patents. The judge said it was an entirely hollow and formalistic gesture. Bender was also found to have been under a conflict of interest because he was paid by AIC and there was no full disclosure of that to the clients.

Divorce these actions from the criminality of AIC and it doesn’t seem that different from the activities of many agents worldwide, does it? But the chances of running into trouble in England are pretty remote. By contrast to the US, acting for another to procure patents is not a reserved legal activity. Anybody can do it. Notionally the UK IPO can refuse to deal with an agent for misconduct but it’s not known that it ever has. The power to do so rests with the Secretary of State under the
The Patent Agents (Non-Recognition of Certain Agents by Comptroller) Rules 1990. The Legal Services Bill is all about professional regulation in the legal sector but, since it only deals with reserved legal activity, the independent inventor needs to look after himself in that area.

Now the responsible practitioner likes a fancy title like Solicitor or Patent Attorney, and for that he does need to submit to regulation. In my opinion, trying to make money from your ideas is a risk business and an independent inventor must take his risks just like any other entrepreneur. Selecting advisers you can trust is just another risk and, as a rule of thumb, anyone who offers to take your money up front for vague promises of jam tomorrow needs to be treated with caution whether he’s called an invention promoter or an independent financial adviser. Wouldn’t you agree, Merpel?

For those wanting to call themselves Solicitor and get into the commoditised legal services business this is a more serious issue. From 1 July the Solicitors Regulation Authority (
SRA) has a lovely new code of conduct which would shred Bender on as many counts as the USPTO did. So the individual inventor who wants this US level of protection should only consult a solicitor, but not any solicitor, as the majority would be obliged to turn such a client down for lack of resources and/or competence under rule 2(1)(b)".

More on American Inventors Corporation here

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