I recently had a meeting with a client who was talking about another patent attorney with whom he still has a relationship, and the client said that he was just drowning in bills from the attorney. The client shook his head and said that he thought the attorney sat around dreaming up things to bill when the attorney was running low on money.
Looking at the situation from the outside, the attorney had effectively choked off his income stream by squeezing the client too hard. He probably was paid in full for the recent bills, but the client took new business elsewhere.
As I met with the client and chatted about their situation, I began to explore their business plan and their worries about protecting their device once the product was in the market. They had a number of patents that covered the very cool and revolutionary innovations inside their device, which would protect against someone who copied their product exactly. However, if the market for the product exploded, there were plenty of alternative designs that could be built that skirted their patent protection completely, even if they did not deliver the same performance.
We discussed what these alternative designs for the device might look like, and as we did so, they all shared something in common: a mechanism for controlling the device, regardless of the design of the device itself. By covering the controlling scheme in addition to the innovative device itself, we can get much broader protection for the client.
Originally, they saw their sexy, innovative design of the device as the most patentable. However, in the larger business sense, the controlling scheme may have more value.
What do we learn from this story? First off, the first attorney’s practices hurt his two ways: not only did he alienate a client, but because of the client’s reticence to meeting with the attorney, the attorney missed an opportunity to identify new work. Short term greed is a terrible business model. Leave some money on the table.
Second, this is another example of where meeting with a client, getting to know their business goals and their knowledge of the marketplace will identify the best things to cover. Often, the best coverage from a business standpoint may not be the glamorous, super inventive product design, but the more mundane aspects that any other competitor would have to do to compete, even if they have an inferior product.
I don’t know if I could have taken the time to get to know the client and their business as well as I could have if I was billing by the hour. I think the client would have wrapped the meeting up long before we got through the background stuff and started exploring what coverage would make the most business sense for them. Offering this service free of charge, at least in this particular situation, was necessary to put both parties at ease and let the discussion happen.