Should I Be Afraid That My Patent Attorney Will Steal My Idea? Episode 113

Inventors’ Common Concern

I have potential clients call me all the time who want advice about their invention, but they’re afraid to tell me anything about it. It’s understandable. You always hear patent attorneys say not to disclose your invention to anyone before filing a patent application unless there’s a non-disclosure agreement (NDA) in place. Why? Because someone might steal your invention, and your disclosure might be used against you to reject your own patent. If you tell people about your invention, then it’s considered public, and if it’s public, you might not be able to get a patent on it.

Disclosing to a Patent Attorney Without an NDA

So what about disclosing your invention to a patent attorney without having them sign a non-disclosure agreement? What if you’re afraid the attorney will steal your idea?

Here’s the truth: patent attorneys are not interested in stealing your invention.

They’re too busy doing legal work to also try to become business and marketing people for a product they didn’t invent. They’re just not interested. I know you think your idea is worth a million dollars, but patent attorneys know that it takes a lot of work to make a product successful, and their legal skills aren’t the skills needed to turn a product into a successful business—especially while also trying to run a law firm.

And here’s the sad truth: the vast majority—probably well over 95%—of patent applications never result in a product that makes any money. The patent attorney is going to make more money filing and prosecuting your application than trying to steal your invention and make money from the product itself.

Still Worried? Let’s Talk About It

Okay, let’s say you heard what I just said, and you still don’t believe it. You think that if you tell an attorney your idea without a signed non-disclosure agreement, they’re going to steal it—and you don’t trust them, especially if they refuse to sign one. That sounds fishy, right?

Why wouldn’t the attorney just sign an NDA if they have no intention of stealing your invention?

The Real Reason: Attorney-Client Privilege Already Applies

The main reason is that there’s already a non-disclosure agreement in place by law, even without any paperwork from you. This protection comes from something called attorney-client privilege.

Attorneys are not allowed to disclose communications from you without your permission. This is similar to the doctor-patient privilege. When you go to your doctor, do you ask her to sign a non-disclosure agreement to not tell anyone about your condition? Probably not. That’s because it would violate doctor-patient confidentiality and HIPAA. The doctor could lose their license. There’s no need for the doctor to sign an NDA because the law already provides confidentiality.

Even If You Don’t Hire the Attorney

I’m in California, but this is probably similar in most other states. Even if you never hire the attorney, the information you tell them is still confidential if the conversation is related to possibly retaining them.

Let me quote briefly from the Ninth Circuit Court of Appeals in a case called Baron v. United States District Court for the Central District of California:

“Prospective clients’ communications with a view to obtaining legal services are plainly covered by the attorney-client privilege under California law, regardless of whether they have retained the lawyer, and regardless of whether they ever retain the lawyer.”

If you look at the State Bar of California Rules of Professional Conduct, Rule 1.18(b) says:

“Even when no lawyer-client relationship ensues, a lawyer who has communicated with a prospective client shall not use or reveal information.”

There’s more detail in the rule, but the core point is: even if there’s no formal attorney-client relationship, the attorney still can’t reveal your information.

Exceptions to Confidentiality

There are some rare exceptions. If you threaten to harm someone, an attorney can break confidentiality. Or, if you sue your lawyer for malpractice, they can disclose information to defend themselves in court. But if you’re just discussing a business idea, everything is confidential by default.

Why Won’t Attorneys Sign NDAs?

So, if everything is confidential already, why won’t the attorney sign a non-disclosure agreement?

Because attorneys already have their own confidentiality rules. Your NDA might not align with these rules.

Does your NDA say that I’m allowed to talk to a patent examiner? What about a patent illustrator? What about a judge? Or another attorney assisting me? All of these people may need to be involved in helping get your patent allowed. But your generic NDA probably doesn’t account for these necessary disclosures.

It becomes a legal mess for me to follow the Ninth Circuit’s rules, the state bar’s ethics rules, the U.S. Patent and Trademark Office’s rules—and also your rules, which might conflict with the others.

Why Not Just Add a Clause Saying “I’ll Follow the Rules”?

Maybe you’re thinking: why not sign an NDA that just says you’ll follow state and patent office rules?

Because I’m already bound by those rules. I actually include a section in my retainer agreement that says I’m bound by confidentiality according to California law and patent office rules. I don’t need to include it—but clients like to see something that looks like a non-disclosure agreement, so I put it in. But honestly, it’s redundant.

Could a Patent Attorney Steal Your Idea?

Technically? Sure, they could try. But is it worth it for them to lose their law license and risk jail time on the off chance that your invention actually turns out to be valuable?

Patent attorneys just want to practice patent law. They’re not interested in becoming product entrepreneurs.

I’ve looked—I couldn’t find a single instance of a patent attorney stealing an invention for their own benefit. They’re too busy, not interested, and the risk is far too high. It’s against the law, and they could lose their license and go to jail.

I’m Adam Diament, and until next time, keep on inventing.