We are happy to share some information about us. The Law Office of Smith & Hopen concentrates its practice exclusively on intellectual property matters. This includes patents, trademarks, copyrights and related litigation. Our attorneys are leading practitioners in the area of high-technology intellectual property development. Some of the world’s most esteemed publications reference our work. These include the Wall Street Journal, Smart Business for the New Economy, Capital District Business Review, and The Business Journal cite our attorneys for their authority on patent, trademark and copyright protection. Our firm holds an AV® rating by Martindale-Hubbell.
Protecting the Client:
Every attorney at the firm is a member of both a state bar association and registered with the United States Patent & Trademark Office (USPTO). Both the state bars and the USPTO have strict requirements for client confidentiality and duty of care. Our attorneys have attended years of highly competitive professional schools, passed the state bar and the USPTO registration examinations. Our firm has represented hundreds of clients over the years in the profession. Furthermore, state bars and the USPTO have rules and guidelines that strongly protect client rights.
Make no mistake about it. There are unscrupulous attorneys whose actions do a disservice to the profession. Consequently, before you make any decision about hiring an attorney, ask other attorneys you might know.
- Who has a good reputation in the legal community?
- Which firm represents major clients and consistently achieves successful outcomes ?
- Which firm has the experience to find a solution in a situation that stumps other firms?
- For intellectual property attorneys, you can look up which patents and trademarks issue from their firm. From this information you can glean valuable insight. For example, does the firm represent reputable clients? Does the firm handle a broad spectrum of technologies or only focuses on a narrow niche? Furthermore, how many patents or trademarks has the firm handled?
No iron-clad contract can guarantee excellent representation. Moreover, it takes years of attentive service, personal attention and excellent outcomes to build a reputation in the legal community. Accordingly, go with the firm with the best reputation.
Building a Relationship
We are privileged to work in an area of law that rewards innovation and success. However, intellectual property matters are complicated and intimidating for first-time clients. We are selective with the clients we represent because our goal is a long-term relationship. Consequently, the more success we can bring to a client the better off we are together. In conclusion, no other area of law affords the same type of relationship and we are honored to play a part in our clients’ financial and scientific achievements.
Patent cases on contingency introduce some complexities not found in other areas of the law. We are occasionally asked to write a letter, file a patent application, or handle a lawsuit on a contingent fee basis. Our policy is to decline such requests because contingency fee arrangements are usually unfair to the client.
Suppose a client asks us to write a demand letter for $100,000 on a contingency fee basis. They tell us to keep a third of the proceeds if the letter results in payment. We could receive a legal fee of $33,333.33 for a letter that would normally cost about $600.00. It makes much more sense for the client to pay the small letter-drafting fee and keep the proceeds.
Contingency in Patent Applications
The same logic applies to the filing of a patent application. To avoid a $10,000.00 legal fee for preparation of a mechanical patent application, for example, a client may propose that we waive the fee and participate in the profits derived from the invention. If the invention meets with commercial success, the client could pay a fee far in excess of $10,000.00.
If the invention is not commercially successful, we have worked for two to three weeks with no revenue. This is even though our overhead bills never stop coming in. We have no control over whether or not an invention meets with commercial success. That depends upon the marketing efforts made by the inventor, not upon the quality of the patent application. Consumers don’t purchase products because the patent application for the product is well-written. Being full-time patent attorneys, we can do no more than advise our clients to avoid marketing scams.
Contingency in Patent Lawsuits
A different reasoning applies to lawsuits. Contingency fee arrangements are common in personal injury (PI) cases because the only issue in such cases is damages. The liability is usually clear and most PI law firms will not accept a case on a contingent fee basis if liability is not clear. Thus, the only issue in most PI cases is how large the payment will be, not whether or not there will be a payment.
In intellectual property cases, liability is always disputed. An accused infringer will attack the validity of the patent by citing prior art that was not cited by the examiner, and will argue noninfringement as a backup defense. A typical patent infringement suit lasts two or three years and requires the full-time attention of at least one lawyer. No lawyer with an office can stay in business without revenue for such a long period of time. Personal injury cases, on the other hand, are over much quicker and, again, the only issue is the size of the recovery.
In most cases, we are able to quote a flat fee for our services. This removes the uncertainty caused by hourly rates. When a lawyer quotes a fee of $300 to $500 per hour to write a letter or to prepare a patent application, the inventor’s reply is always “Write fast.” Well, that leads to a letter or patent application prepared in a bum’s rush. A well-crafted letter, patent application, or an amendment to a patent application, is best prepared in a focused, well thought out manner. A flat fee protects the client from surprises, ensures a thorough preparation of the application, and is, we believe, the only fair alternative to hourly rates and contingency fees.
Booking a consultation does not automatically create an attorney-client relationship. However, no successful patent attorney will “steal” your invention. In fact, the reality is that inventing is hard work. It takes not just the spark of imagination, but project planning, marketing, capital investment and competition with the status quo. The attorney-client privilege in our profession is exceptionally strong: we are bound by confidentiality by both the state bar and the U.S. Patent & Trademark Office Rules of Professional Conduct. The attorney-client privilege is the client’s right and is fiercely protected by ethical attorneys.
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