burdlaw inventor guide - HOW TO AVOID GETTING SCAMMED
One of the most important things when you invent is to be careful where you get help.
Here is how the scam works: (1) THE BAIT – Slick ads entice you come to them enthusiastic about your idea and wanting help getting it to market, (2) THE SET UP they sign a secrecy agreement to “prove” they are honest (no problem for them, they want your money not your idea; (3) THE HOOK for a few hundred dollars they will produce a puff piece extolling the virtues of your invention and do a patent search (no problem for them, you are paying for it and the puff piece is part of their sales pitch to YOU) (4) SETTING THE HOOK since their basic information package (puff piece) always says your invention is great and their patent search always says it is patentable, your enthusiasm is validated (falsely) and you feel good about that and like them for that, so you now are asked to put down thousands of dollars (5) REELING YOU IN Once you pay these first few thousands of dollars (not to worry if you can't afford it, they own a finance company so they can get interest from you, too), they provide you a slop-job patent application from a supposedly (but not really) independent patent attorney, trade shows with other victims who share your gullible enthusiasm, website promotions no one will look at, brochures companies will discard upon receipt, supposed letters to industry (that only draw laughter and sorrow you are being victimized) and all manner of other worthless services, and as long as you keep biting on the bait, they keep reeling you in for more and more money until you finally say “no more”, (6) THE DROP When no industry interest develops, as is the case over 99% of the time, and you have finally said “NO MORE” when they ask for thousands of dollars more to promote what you now are wondering “if this is such a great invention why is no one interested”, and since you usually won't waste any more money they then say they have done the best they could and then they become non-responsive to your communications (unless you have a lawyer send threats.)
Net result: YOU LOSE thousands of dollars and become frustrated with the patent process and stop inventing.
It doesn't have to be that way.
To avoid getting scammed when you invent, you must:
The best resource on patents for a novice inventor is the US Patent & Trademark Office (“USPTO” or “PTO”) website www.uspto.gov. I like to have inventors start by listening to advice from the horse's mouth, the video at http://www.uspto.gov/video/cbt/conceptprotection/index.htm then read the official PTO brochure at http://www.uspto.gov/patents/resources/general_info_concerning_patents.jsp That link is your path to objective and really indispensable advice. There are also two books I recommend for you: first One Simple Idea by Stephen Key (to explain to you that patents are not always what you want or need – it may be fast action and a great brand name) and Patent It Yourself by David Pressman (a huge book that details the process and how you can do it if you positively must do it on your own – which is just never ever ever wise to do), both available on Amazon.com. For Patent It Yourself, buy new so you don't get some obsolete older edition. In fact, even the latest edition is always obsolete, so the PTO website is vital to doublecheck things. Fees constantly change, laws change, and so the www.uspto.gov website is crucial to get current information. Also, despite the title, you should NEVER try to Patent It Yourself. It's simply too complex, as the size of the book (which actually only covers a fraction of what a patent attorney knows) will hopefully convince you. Instead, use the book as a reference for you to talk intelligently about the patent process and to have a handy objective place to look up things and verify when in doubt. It will help you immensely to feel more confident when dealing with a patent attorney since it will explain the process to you and help you know what you should be asking and doing and what you should expect your patent attorney to be doing and when.
Your invention is probably not all that great. Sorry, but few are. "(Google the words “inventored.org” or “inventor caution list” and you will see this information has been published for a long time – scammers have worked hard to try to silence it and cover it up) and be realistic about your chances for success because those promising “help” to those who invent are all too eager to take advantage of any lack of caution. The invention help & assistance, development, protection, submission and promotion field is a sea notoriously full of sharks preying on your desire to hear that your “baby” (the thing you invent) is something they would like to help you submit to industry. Another way to check is to type in the company's name followed by the word “scam”. If you get warning about them, head the other way. If you come upon some page by the company claiming they are honest and help to prevent scams, such as by having a Scam Prevention Team, be wary and ask yourself why, if they are really honest, they put up a front claiming they fight scams. The answer is “reputation management” so that when you run that search you get stuff saying they are not a scam. Even the biggest promoters claim to “help” you avoid scams and if you fall for that, they can then proceed to scam you. Curbing your enthusiasm will help you avoid the unscrupulous promoters who try to take advantage of such enthusiasm to scam you under the pretense that they “help” you submit what you invent to industry. Generally, all they want is to help themselves to your money. Remember when you are a little fish you have outsmart and avoid the big fish or you become their meal. The invention field is a sea full of unethical big fish feeding on small inventors. Get smart or you will get eaten!! Patent lawyers are NOT the sharks. The promoters are the sharks: invention submission to industry scams, inventor "help" scams, invention technical marketing scams, invention technology review scams, invention prototype production scams (search those terms on Google to learn more or view the United States Patent and Trademark Office complaint page) and many other similar scams that ask for upfront money and prey on the novice inventor’s enthusiasm and need for help. When you invent something, these firms know you want help and know you want to hear that someone agrees with you that your idea is worth pursuing. Promoter sharks usually do this by using bait -- slick advertising on TV, in magazines, over the Internet, or worse yet in information packages they “help” you by working up from readily available materials to emphasize the best features of what you invent. That is the last thing you need. What you need is the TRUTH. If you fall for the bait of slick ads and pushy salespeople, you will almost certainly lose money and come away frustrated with the patent system. Recognize you are a little fish in this perilous sea of big sharks and need to curb your enthusiasm, avoid the shark bait, and proceed cautiously with a huge dose of skepticism. Rest assured that there are sharks out there hoping to feed on your bank account by preying on your enthusiasm for your invention. In this case the sharks are the invention promoters NOT the attorneys. In fact, a good patent attorney, an inventor group, and your local Patent Depositary Library are your best scam defenses against you getting bitten by the sharks and a good patent attorney can lead you skillfully through these shark infested waters. DO NOT, under any circumstances, let an invention promoter chose your attorney. These “chosen” attorneys are nearly always beholden primarily to the promoter, which means they know they must say your idea is patentable or they will get no further work from the promoter. We call that CONFLICT OF INTEREST. It is a violation of the attorney’s ethical rules of practice for which attorneys have been disbarred. These attorneys offer low-ball rates consistent with their low ethics and low level of service and their opinions or advice are seldom sound and seldom reliable.
KEEP IT SECRET
Before I continue about shark-like promoters, another word of caution: Remember premature public discussion or use of your invention can result in loss of rights. Don’t give it away for free because once you do it may be gone forever. Keep your invention secret while you get educated on protecting your invention and keep it secret while you take the steps needed to protect it. The exception: see a patent attorney for a free consultation and fully disclose your invention to the patent attorney, whose career is at risk if he or she would violate your trust and disclose your invention without your permission. The patent attorney is trained to know how and when to disclose your invention and how to protect the disclosure against misuse by the people receiving it. Don't be fooled by a scammer's promise to keep your invention secret, they are interested in your money not your idea, so they will agree to keep it secret before they disclose it to industry.
TIME IS OF THE ESSENCE
Patent laws encourage and reward the first to file a patent application. If you delay and someone else files first you will most likely loose your rights to that earlier filer. You must act quickly or you may end up without the right to stop others from deliberately making, using and selling your invention. Scammers know this and use it to pressure you and make you rush into a foolish decision.
ABOUT PATENT ATTORNEYS
Now more about patent attorneys. If you are investigating thoroughly and not letting your enthusiasm get the best of you and cause you to get scammed or otherwise be fooled into wasting your money, there is a source of hope. A good patent attorney is a trained FRIENDLY navigator through these shark filled waters and normally your very best resource as a new inventor. Get a shark tamer working for you rather than a promoter shark that is trying to eat your bank account. Most patent attorneys will give you a free initial consultation of at least a half-hour. Do not be bashful about asking for a free consultation. Attorneys do initial consultations for free because attorneys do not want to take losing cases or inventions with no chance of success. Why, because that just leads to a disgruntled client, and a disgruntled client can scare away good paying new clients. Recognize that after the free consultation (which, I repeat, you absolutely should use) patent attorneys are very expensive. For example, after the initial consultation, I charge $200-$300 per hour (more in litigation matters) depending on what legal service I am doing. That is a normal rate. Some patent attorneys charge even more. On the other hand, my fellow patent attorneys and I usually know what we are doing; we work very fast and efficiently, and we work FOR you (we are required by law to do so and can get disbarred or disciplined for not doing so) and we try to always tell you the TRUTH. Ask for fee quotes from a patent attorney up front and never be bashful about asking about fees. Ask if there is a fixed fee, which may be lower than an hourly rate, especially if your case takes more time than expected. Remember, your patent attorney may be the expert but YOU are the boss and the patent attorney is under ethical obligations to zealously represent YOU. Invention promoters, on the other hand, always represent themselves, not you. Unlike attorneys, promoters are not bound by any code of ethics and can cheat you if they want. Promoters are primarily interested in your money not your invention and can be your worst enemy if you don’t pay them or if you really have an unpatentable invention or an invention that will not sell. I have seen firsthand many incredible horror stories from promoter victims, and almost no success stories. Your attorney, on the other hand, is subject to a disciplinary board and your patent attorney’s career can depend on never being your enemy or cheating you. An attorney will simply withdraw (fire you as a client) if you stop paying or (rarely) if you refuse to follow their advice. WARNING -- even some patent attorneys or patent agents are sharks who recommend filing right away before doing a patent search. Don’t fall for that either. This is most common with large firms with fancy offices and large overhead that require lots of billable hours to maintain. That big overhead expense that has to continually be met clouds their objectivity and makes them want to recommend something that will generate billable hours and legal fees to pay for all that fancy stuff in their fancy offices, houses, cars and other perks. So, if they do recommend filing without searching leave right away, that is a red flag telling you they may be thinking only of their fees. If you get that “file now, without a search” you probably need to get a second opinion before proceeding, unless you are about to take some action that will cause you to lose your patent rights if you do not file. If you are going to get a second opinion, do it immediately, as most attorneys are honest and smart and so odds are the attorney has good reason for telling you to file now. If you get too skeptical, you may miss an important legal deadline or allow someone to file first on your invention and steal it away from you, so you should assume the attorney has good reason for the attorney's recommendations, but nevertheless doublecheck if you have any doubt. The second opinion will let you know whether there is reason for doubt or not.
DO A PATENT SEARCH
Do a patent search (there are many kinds of “patent searches”, and the one you want is called a “novelty search”, “prior art search” or “patentability search”) and do it through someone not connected to any invention promoter and if you want it done right hire a professional searcher [the best ones only work for patent attorneys, as that's where the steady business is for them.] Don't have anyone recommended to you by an invention promoter do the search [Why? Because they will usually just produce a puff piece that they know the promoter wants you to get to encourage you to spend more.] Don’t let anyone put false stars in your eyes, not a promoter, not a friend, not some self-proclaimed “expert”, and not your patent attorney. Let no one delude you into thinking you do not need an independent patent search. From 40 years of experience dealing with small inventors, I can say with absolute certainty that it is almost never wise to file a patent application without first doing a patent search and it is never wise to allow an invention promoter to have anything to do with the patent search, or to choose your patent searcher. Invention promoters are salespeople, trying to sell their services to you, so their attorneys and their searchers all have a conflict of interest and usually really work for the promoter not you and are generally just a part of the con being pulled on you. In fact, several patent attorneys have been disbarred for such conflicts of interest. Patent searchers or attorneys working for a promoter seldom give you accurate or reliable or unbiased results because they know the promoter will not send them any more business if they ever give a negative opinion on patentability. Their opinions are on paper and may sound very sophisticated, but usually are mostly just “boilerplate” that applies to everyone with little actual substance about YOUR invention. Remember, “Paper is just paper.” In fact, the more paper the promoter gives you or has you sign generally the more you should avoid them. This is your “baby” and your invention. Babies need pediatricians (to determine if they are healthy and to protect their health) and inventions need patent attorneys (to determine if the invention is protectable and to protect it). What you need, if you think about it, is just the honest truth and not a sales pitch from a promoter or someone trying to help a promoter get your money. You need someone who will bring you back to earth if you are too enthusiastic and criticize your invention honestly and tell you its weaknesses so you don't waste your money. Sometimes the best advise is to give you a “cold dose of reality.” A promoter will almost never do that because a promoter wants you to think your invention is great so you will keep paying them. A patent attorney, on the other hand, will use a professional searcher whose only job is to try to find something that shows you can't get a patent, and who knows if the searcher misses something important that no more business will be coming from the embarassed attorney who relies on that faulty search. Since search is how professional patent searchers make their living, they can't afford to be wrong, and seldom are. In addition, if the patent searcher is unable after thorough searching to find anything that would show your invention to be unpatentable, then you can proceed with the assurance that it can probably be patented. Most patent novelty searches also locate competitive inventions that might be an alternative to your invention and those help you determine if your invention is not only new, but better. If your invention is not better, of course, it will likely not be a commercial success. No search is perfect, but a professional searcher will seldom miss anything major. If you order the search through an independent attorney, you also satisfy another need. You have proof of your invention date by someone who can probably defend the date in court if need be. If your invention is patentable, you need someone who will create protections to protect your creation not someone who is only in it to create profits for themselves and their employer [which is the invention promoter's goal.] Large companies have in-house patent lawyers so they know they are getting good unbiased advice and so their inventions don’t get ripped off. You, however, don’t have a full-time in-house patent lawyer, but you can hire a law firm patent attorney or get educated sufficiently to protect yourself and, if you choose wisely, do just as well as the big companies. Temper your enthusiasm, act smart, get a good unbiased professional patent search done, and your chances of success will dramatically improve.
BACK TO THE SHARKS
Now back to invention promoters. Not all are bad, but many are, so do yourself a big favor and run a Google check on the company that wants to help themselves to your money to “help” you as you invent. In your Google search, type the company name followed by the word “scam” or “fraud” or “caution” to see if there are any listings that indicate the company may be offering HARM rather than “help”. If you meet with one of the slick salespeople from a promoter, ask specifically for an "Affirmative Disclosure Statement" (now required by law for promoters) and read it carefully, including the fine print. That statement is for your benefit. See if you would really do business with any company with the indicated rate of success, which is normally well under 1%. Normally, that will tell you that you are virtually certain to waste your money if you proceed with that company. Don’t be fooled by any sales pitch that “You are that one in a thousand that will succeed.” You almost certainly aren’t. Run a Google check on “inventor caution list” or “invention submission scam” to find sites that might be informative. Promoters are devious, so be aware that unscrupulous invention promoters might try to distort the listing by posting a page purporting to tell you how they are an “Honest Invention Company” to trick you into thinking they are not one of the unscrupulous ones. Don’t be fooled if the company’s name includes some term like “help”, “assistance”, “home”, “tech”, or the like, as such terms may be simply there to mislead you. If they need to add such a term, that should be a red flag to be extra cautious because it is probably a company that needed to add such a term in order to convince you they are something they are not and to entice you unwisely or impulsively rely on them and part with your money when you need to keep it and find someone else.
GET SOME REAL HELP
Instead of dubious “help” from a promoter, your first step should be to either (1.) see a registered patent attorney (Ask for a free initial 1/2 hr consultation, and if the attorney won't do it find another one who will, such as our firm, so you can get GOOD free initial advice, and ask the attorney to advise you whether any company you are about to do business with is one the attorney would recommend.) and/or (2.) contact your local patent depositary library for assistance (Ask them if the company you are about to do business with is one the librarian would recommend.) and/or (3.) contact your local inventors' association (Ask them if the company you are about to do business with is one they would recommend.)
Please, please, please don't pay anyone any money for “help” on your invention until you have done a Google search on the company and done one of those three things. This can save you thousands of dollars, avoid frustration and get you on the right track quickly. Again, realize that the “best” track is quite often to stop work and save your money and look for something better.
As an inventor (in addition to being an attorney, I am an inventor and a patentee) I know you want to hear good things about your invention, but the "Truth" is what you need and the truth may be that you are wasting your time, so don't be blinded by false praise, false promises or false predictions of success. Again, do a Google search on the firm (adding the word scam or fraud to their name). Look at the documentation carefully. See if the firm appears on the US Patent and Trademark Office complaint page http://www.uspto.gov/web/offices/com/iip/data.htm#LicensePromotion. Check www.ftc.gov and search the firm on the FTC site by name for helpful information on who has been fined or the subject of complaints. Leopards don’t often change their spots and neither do invention promoters, so even if the firm was sued even 10, 15 or 20 years ago, and even if they settled (usually by paying millions of dollars in lieu of fines), you should be very cautious with them now. You can also write the author for information on a specific company, as I have been doing this for over 35 years.
Get protected, don’t get scammed!
Bruce Burdick, JD - Owner & Founder & Managing Attorney of The Burdick Law Firm (est. 1973)
Webmaster (since 1994) & Registered Patent Attorney since 1974.