I've been acquiring a recurring question lately: "Will you sign this Non Disclosure Agreement before I tell you about the invention I want you to write a patent application for?" Often, the question is phrased, "how a lot do you charge to write an NDA that you will then sign so I can tell you about my invention?" This second question is a doozy presenting all sorts of troubles. Let me me just kill both concerns here: you most likely do not need your patent attorney to sign an NDA when you are thinking about hiring him (or her) as your patent lawyer.
Let's speak about that second question initially. An lawyer owes all sorts of ethical duties to his client. The attorney would be violating any number of them by writing a non disclosure agreement that he will later sign. As a practical matter, I hate to feel that there may possibly be some lawyers who are actually charging clients to prepare an NDA just so the client can then ask them some concerns about how to patent their invention. The lawyer owes a duty of loyalty to the client, so writing an agreement that rewards the client, possibly at the lawyer's expense (as the signing party), is in all probability barred by ethical rules - tough to separate the attorney's from the client's.
Frequently, it is advisable that both parties signing an agreement have counsel give them some suggestions on the agreement. The client is represented by the lawyer who drafted the argument. Does that mean the drafting lawyer must then get his own attorney to advise him no matter whether to sign the agreement that he in truth wrote? The entire circumstance is highly odd. And receiving paid to be put in that circumstance is even weirder. And probably unethical. So let's drop that one.
Onto the 1st question: should a lawyer sign an NDA prior to the inventor discloses his notion to him? Likely not. Attorneys commonly owe a duty of confidentiality, imposed by state law, to their clients. Patent attorneys are also subject to federal rules that need client info be kept confidential. But then the question arises of no matter whether an inventor who is calling to get some simple information about fees and the patent approach is truly a client. This depends on many elements, and it could absolutely be argued that the inventor is not however a client, which signifies the attorney may possibly not have an obligation to keep the divulged info confidential. This has all sorts of ramifications on the inventor's capacity to file for patent protection in the US and abroad.
So what is the remedy? How can an inventor get simple advice with no risking disclosure of his notion? An inventor could attempt going to 1 lawyer, have them draft an NDA, and then take that to the patent lawyer to sign just before initiating the attorney-client relationship. But this presents challenges of its own, beyond the obvious expense issues. An lawyer ought to make certain, prior to representing a client, that the representation wouldn't cause any conflict of interest with any existing or past customers. Creating this determination would be fairly challenging before realizing the rough boundaries of what the client demands.
Maybe the inventor could tell the lawyer only certainly fundamental details about the invention - not adequate to trigger disclosure, but enough that the lawyer could get an idea about the invention? Again, tough to do. Most attorneys will want to describe the invention to some extent in the engagement letter so that it is clear precisely what the representation will entail. And for patent attorneys who practice in niche fields - opto-electrical sensors, balloon catheter medical devices, etc. - a "fundamental" description most likely isn't going to suffice.
I propose that you rely on two points: trust and faith. Most attorneys can be trusted. And most attorneys are not businesspeople or inventors or looking to expand their income stream. What I mean by this is that they aren't your competition, they are quite possibly not going to steal your idea and attempt to industry it themselves. And when I say you ought to rely on faith, I'm guessing that the Patent Workplace would in no way refuse your patent application based on a disclosure to an attorney, nor would a court invalidate your patent because you shopped it about to two or 3 attorneys before choosing 1. Have some faith that the courts would come across there does exist a duty of confidentiality extending to prospective patent customers. I'm going to do some research to see if there is any case law where an inventor was prevented from obtaining a patent given that he disclosed it to an lawyer and then waited too lengthy to file the application. I extremely doubt there is any frequently, that sort of disclosure happens when it is created to a convention audience, or friends and family members, not to an attorney who has a frequently recognized duty of confidentiality.
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