What Are The Differences Between Patent Brokers, Patent Attorneys, And Patent Agents?

By Author: Vitek IP
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What Are the Differences Between Patent Brokers, Patent Attorneys, and Patent Agents?

Developing and selling patents is a complicated process that requires an array of different skill sets, and achieving the best results requires using the right tool, for the right job, in the right way. But how do you know if you’ve got the right tool for the job if you don’t know the capabilities and limitations of each? Patent Brokers, Patent Attorneys, and Patent Agents share many similar characteristics and responsibilities, and they even perform some of the same tasks. However, while there is some overlap in the services each patent professional provides to their clients, there are significant differences that are important for determining which professional is right at each stage of the patent life cycle/process.

Patent Brokers

Also referred to as an intellectual property (IP) broker, a Patent Broker facilitates the sale of patents between a patent holder and a purchaser. A Patent Broker actively manages the process of bringing a patent to market for sale or ...
... advising the purchase of a portfolios in matters related to valuation, infringement, and licensing, among others. A Patent Broker differs from a Patent Attorney and Patent Agent in one key respect: A Patent Broker possesses the unique experience and skills to navigate the ill-defined marketplace where patents and portfolios are bought and sold. Patent Brokers specialize in transacting patents in the market, and usually offer services related to researching and creating a sales and marketing strategy for a patent or portfolio, connecting potential buyers and sellers, performing infringement, market-related, and patent claim analyses, and ultimately negotiating the sale or licensing of a patent or portfolio.

A good Patent Broker will have a technical or science background, which typically includes a Bachelor of Science degree. While Patent Brokers are not authorized to represent clients in legal actions before the United States Patent and Trademark Office (USPTO), many Patent Brokerages
employ Patent Attorneys as members of their staff or maintain close working relationships with IP firms to ensure access to legal experience if needed. While some Patent Brokers charge up-front fees, the most reputable Brokers operate on a contingency fee basis, receiving payment only upon completion of the transaction. In this way, the structure of the service relationship functions more as a partnership, where both parties are correspondingly motivated to locate the best possible transaction.

Patent Attorneys

In contrast to a Patent Broker, a Patent Attorney specializes in the practice of patent law. Not every attorney is qualified to practice law as a Patent Attorney. In addition to graduating from a law school approved by the American Bar Association and passing a state licensing exam to practice law, a Patent Attorney is also required to pass the Federal Patent Bar, an exam in which only those attorneys who have completed a Bachelor of Science degree or possess a particular practical engineering or science background as defined by the USPTO. Passing this exam is required before a Patent Attorney can represent clients before the USPTO.

The responsibilities of a Patent Attorney include preparing and filing patent applications (also known as patent prosecution), providing legal advice and opinions on patentability and patent searches, and representing clients in patent litigation involving patent infringement. Unlike a Patent Broker, a Patent Attorney possesses no special skills related to the marketing or sale of a patent portfolio, and a Patent Attorney’s role in the sales process is typically limited to providing advice regarding potential infringement claims. Patent Attorney fees are typically charged at an agreed-upon hourly rate and include costs for the attorney’s time and any fees associated with court costs or filing fees, (although many law firms are starting to adopt fixed fees for the filing and prosecution of a patent application). Patent Attorney fees can rise as high as $500 or more per hour, depending on location and complexity. Patent Attorneys also often require a retainer fee before performing any work. 

Patent Agents

Like a Patent Attorney, a Patent Agent is licensed by the USPTO, but a Patent Agent’s licensing is limited in several ways. Specifically, a Patent Agent is not authorized to practice law or represent clients in actions before the USPTO. However, a licensed Patent Agent is authorized to assist and advise inventors with a variety of tasks, for example, completing and submitting patent application paperwork, or performing prior art searches to determine whether an invention has been previously described. In addition, Patent Agents can draft claims of ownership paperwork, revise any rejected patent applications, and offer opinions regarding the patentability of an invention or process. However, as Patent Agents are not Patent Attorneys, they cannot offer legal opinions related to patent litigation or otherwise.

A good Patent Agent should have a similar technical or scientific background to a Patent Broker, but a Patent Agent lacks the market knowledge, sales experience, and negotiating skills possessed by a Patent Broker. While a Patent Agent can assist with the patent application process, a Patent Agent is ill-equipped to offer meaningful patent valuation and market insight to a patent holder. Additionally, like a Patent Attorney, Patent Agents typically bill clients at an agreed-upon hourly rate, and any fees associated with filing would be passed on to the client.

On the surface, Patent Brokers, Attorneys, and Agents seemingly perform many of the same tasks, but as is often the case, the devil is in the details. Before engaging these professionals, it is important to consider which stage of the process your patent is presently situated. If you’re an inventor with an idea, the right tool for you may be a Patent Agent, who can assist with filing your patent application. If you need an opinion regarding the patentability of your idea or legal advice related to litigation, a Patent Attorney is likely the right resource. Or, if you’re ready to bring your patent to market, a Patent Broker would be your strongest option for assistance with relevant research, analyses, and finding potential buyers. While in a coinciding field, Patent Brokers, Patent Agents, and Patents Attorneys each have different core functions which ultimately determine which is the right tool to achieve the best result at each step of the patent process.

The core team of patent consultants at Vitek IP, LLC have analyzed over 20,000 patents, while managing hundreds of buy-side and sell-side transactions for some of the world’s largest companies. Vitek’s founders have over five decades of experience in IP and tech, and have developed sophisticated patent sales and patent acquisitions strategies for some of the world’s largest companies. Vitek’s patent consultancy, brokerage group, and research organization provide clients exceptional guidance navigating the patent landscape. For more information, visit www.vitek-ip.com.