Now that you have decided you need representation in applying for your patent, you have another important decision to make. Who should you choose to represent you? If you have looked into this question at all, you may have come across both patent agents and patent attorneys. If you are wondering what the difference is between patent agents and patent attorneys, this post should answer your questions.
Patent attorney or patent agent?
Patent law has a specialized bar, the patent bar. Passing this bar allows you to practice patent law before the United States Patent and Trademark Office. Unlike virtually every other area of law, you do not have to be a lawyer to pass this bar . However, you do have to have substantial technical experience, typically a university degree in an engineering or science discipline. A lawyer on the patent bar is known as a patent attorney . A non-lawyer on the patent bar is known as a patent agent .
Most lawyers can never be patent attorneys (they lack the technical prerequisites), and most patent agents are not lawyers. Every patent agent and attorney has a registration number. Since these numbers are sequential, you can get an idea for how long an attorney or agent has been practicing on the basis of their registration number. You can verify that someone is a registered patent attorney/agent here .
What is the difference?
So, what is the difference between a patent agent and a patent attorney? A patent agent is not a lawyer . A patent agent can only represent you before the United States Patent and Trademark Office (PTO), which is an administrative agency of the United States government.
What if you appeal your patent application to the Board of Patent Appeals and Interferences (part of the PTO) and lose, and want to appeal to district court or the Court of Appeals for the Federal Circuit, as is your right? A patent agent cannot do that. What if you want some help with a licensing agreement or some advice about what constitutes infringement of your patent? A patent agent cannot help you with those issues- it would be against the law for a patent agent to give you such advice.
A patent agent cannot help you with infringement issues or licensing issues, or with corollary issues such as trademarks, copyrights, or trade secrets. This goes beyond what they are licensed to do- practice before the Patent Office. You do not need to have any knowledge of the broader legal issues mentioned above to join the patent bar.
So the role of a patent agent is very narrow. A patent agent cannot be your go-to guy for all intellectual property. If intellectual property is a significant part of your business plan and you have worries about infringement or expect to need trademarks in addition to patents, a patent agent may not be the best choice. In fact, I would even be concerned about using a patent agent just to prosecute your patent applications. If a patent agent cannot tell you anything about infringement, how can they draft solid patent claims that protect you against infringers? The art of claim drafting is the art of using the perfect language to capture your invention and avoid the prior art, while still managing to capture infringers and prevent others from designing around your patent.
My recommendation
In short, patent attorneys have been through three years of law school and passed a state bar exam. On average, they have more knowledge about a broader range of intellectual property issues. Of course, this also means they charge more than patent agents on average. If you know what you are doing, have a narrow need (prosecution of a patent only), and know a good patent agent that provides a superb value, going with the patent agent may be the right move.
On the other hand, if you can get a good patent attorney for a similar price, are new to patents and need a lot of questions answered, or anticipate making use of a knowledgable patent attorney throughout the life of your business, I recommend choosing a patent attorney.
Please let me know if you have any questions I have left unanswered or if you feel I have misstated anything. I may catch some flack from some patent agents 
But, I think I have been fair. Any agents out there, you can make your case in the comments below.
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