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Patent Agents vs. Patent Attorneys

“The patent system added the fuel of interest to the fire of genius.”
- Abraham Lincoln

There are two different entities that are legally allowed to represent an Inventor or Plant Breeder before the United States Patent & Trademark Office (USPTO): Patent Attorneys and Patent Agents.  Knowing the similarities and differences between the two will help you in determining what is best for you and your new invention or new plant varieties.  ONLY Patent Agents and Patent Attorneys can legally represent an Inventor or Breeder before the USPTO.  There are countless organizations claiming to offer “Patent Assistance”, “Patent Representation”, “Plant Patent Services” and etc. that are neither a Patent Agency or a Patent Attorney Practice.  Let this be clear: either these entities are illegally providing these services or they are outsourcing the work to a third party but regardless, as the Inventor or Breeder, this is not in your best interest.  Before you decide who you will allow to represent your interests, you should confirm the organization’s or the individual’s standing with the USPTOFor all intents and purposes, the USPTO views Patent Agents and Patents Attorneys as equally qualified entities with regards to Patent application prosecution.  That said, there are certain similarities and differences that you should be aware of when making a decision on whom you will allow to represent your interests. 

Patent Attorney Versus Patent Agent:

  • In order to hold one’s self out as a Patent Agent or Patent Attorney, both must pass the United States Patent Bar Exam
  • In order to qualify to sit for the USPTO Bar Exam, an individual must hold technical degrees in either a Science or Engineering discipline.  The requirement is very specific in this regard and this is true of both Patent Agents and Attorneys.  Attorneys also posses a  JD, have passed at least one State Bar Exam and are a member in good standing.  Regardless, an Agent or Attorney must possess a certain degree of technical and/or scientific aptitude in order to draft a proper Patent “Specification” (which is a detailed account of the newly invented plant, process, composition or article of manufacture).  Sam’s educational background is a mix of undergraduate and graduate work in Crop Systems, Crop Technology, Biology, Chemistry, Physics and Plant Pathology.
  • In the case of both Patent Agents or Patent Attorneys, they focus on specific technologies, usually playing to their educational and commercial experience or expertise; e.g Biotech, IT, medical. mechanical, agricultural, etc.  See Sam’s Profile for more on this.
  • Both are regarded as equally qualified to represent Inventors and Breeders in Patent prosecution before the USPTO.  Both can prosecute Patent applications, conduct Patent searches, respond to PTO office actions, and conduct just about any business with the PTO relating to Patents.
  • Both Agents and Attorneys have taken an oath of secrecy before the USPTO, to keep client information confidential, however in the event of court-related action, the attorney-client privilege does not exist with Patent Agents.  That is, an Agent could be compelled to disclose confidential information if so directed by a court of law.
  • Similarly, only an Attorney can represent an Inventor in a court of law in matters such as appeals or infringement litigation.
  • Patent Attorneys can represent an entity or individual in matters pertaining to Trademarks; Patent Agents cannot.
  • With consideration to the foregoing, another very important difference to mention is the fact that Patent Agent services are almost always significantly less costly than Patent Attorney’s services despite the fact that both are [typically] equally qualified to represent an Inventor or Breeder in all matters relating to Patent application prosecution before the USPTO.  It has been said that Agent’s services fees are typically on the order of one-third to one-half less than those of Attorney’s practicing in similar technology disciplines.  However, specifically in Plant Patents, the difference in service fees is closer to ONE FOURTH THE COST OF PATENT ATTORNEY FEES