How to score a better deal on a cease & desist

June 26, 2012 12:57 AM

LegalFilter: My patent attorney charges more than I can afford to write a cease & desist. should I shop around for a better deal (and how)?

My patent is still pending, but I submitted the application through my patent attorney more than a year ago and i successfully sell my product online. A former customer figured out how to make it, and is now selling the exact same product and claiming they invented it. The problem is that my patent attorney wants $400 to write a cease and desist. I CANNOT afford that. I think I could scrape together $150 at the most.

Should I ask around to see if any friends know lawyers who will write it for less? I'm having a heart attack every day about this person who is currently profiting and hurting my sales...any advice would be appreciated!!

posted by secretsecret to law & government (8 answers total)

I suppose you could look for a pre-existing C&D letter from a different case (chilling effects have a database of them) and just change the names?

(Although if he ignores your C&D and continues to infringe, then what will you do about it? If you can't afford an attorney to write to him, how could you afford to sue him? Good luck.)
posted by richb at 1:23 AM on June 26, 2012 [2 favorites]

IANAL, but I know some things about patents and a pending U.S. patent application gives you no rights of exclusivity. You must wait until the patent issues before you can enforce it. So I am not sure what value you get out of writing this letter?

Also if it an effort for you to scrape together $400 to send a letter, what happens when the infringer ignores your letter? You would then have to send more letters and if those are ignored then you would have to file a complaint with a District Court which is hugely expensive. If you don't have the means to enforce your patent, you might as well not have any patent at all.

Send me a mefi mail and I'd be happy to have a discussion with you off-line.
posted by three blind mice at 3:10 AM on June 26, 2012 [1 favorite]

How are you running a business if you are so cash poor that the difference between $150 and $400 will break you? I'm not being a smart ass here - but a running a business can be expensive. Defending a patent is expensive. You need to worry less about the patent and more, a lot more, about generating revenue profit.

You have much bigger issues than a competitor infringing on your patent.
posted by COD at 5:40 AM on June 26, 2012 [4 favorites]

Another thing to keep in mind is that a cease and desist letter is that if the person you send it to has deep pockets, they can turn it around on you by filing for a declaratory judgment. Basically it pre-emptively starts the lawsuit on their own home turf by asking the court to settle whether or not their product is infringing on the patent. If they live in, say, Boston and you live in San Francisco, they can file in Boston and you would be stuck paying to defend your patent claims there.
posted by burnmp3s at 5:48 AM on June 26, 2012

If you can't afford a to send a C&D, how will you be able to afford the rest of the legal battle if he doesn't roll over immediately?
posted by Tomorrowful at 5:54 AM on June 26, 2012

Talk to your lawyer. Most of the time a chat will help lower legal costs if they expect continued business from you. If not - ask him to recommend an associate at the firm or someone in the field who is less experienced, they're fees will generally reflect that.
posted by Danithegirl at 6:13 AM on June 26, 2012

I am an IP attorney, but I am not your IP attorney. This is not legal advice.

$400 is a bit much. The attorney is almost certainly using a form letter, which he or she will tailor to your particulars, which should not take very long. What is your attorney's hourly rate? Unless it's something like $800/hour (far from unheard of among patent attorneys, sadly), then I suspect there's room for negotiation. I doubt he or she has the luxury of being able to turn down work.

However, as COD pointed out, there are probably more important issues here than whether you can get a C&D put together. Having a patent is not a license to print money. In fact, usually just the opposite: they are expensive to acquire, expensive to maintain, expensive to defend, and expensive to enforce. Lots of businesses with patents fail and lots of businesses without them succeed. You need to decide whether it is better to spend $400 (or even $150) on a C&D or whether that money would be better spent on your business—or on rent or groceries, frankly.
posted by jedicus at 6:55 AM on June 26, 2012

I am an IP attorney, but I am not your IP attorney. This is not legal advice.

What three blind mice said.
posted by eugenen at 7:42 AM on June 26, 2012