No, and it’s one of the few risks in the invention process covered by an enforceable rule rather than a handshake. A registered patent attorney or patent agent is bound by the USPTO Rules of Professional Conduct, and 37 CFR 11.106(a) prohibits revealing information relating to the representation of a client without that client’s informed consent. Violating it can cost a practitioner their registration.
This article is general information about U.S. patent practice and professional conduct rules, not legal advice.
The worry is understandable. You’ve spent two years and your savings on something nobody else has built, and the first step is to describe it in detail to a stranger. So here’s what actually protects you, and where the real risk sits instead.
The Rule That Applies Before You Hire Anyone
The duty of confidentiality already covers you as a prospective client, before any engagement letter exists. That’s the part most inventors don’t know. You don’t have to pay a retainer for the obligation to apply. A consultation where you describe your invention to a practitioner considering whether to represent you is covered.
The rule itself is short. Under 37 CFR 11.106(a), a practitioner “shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation,” or a narrow listed exception applies.
Those exceptions are narrow on purpose. They cover things like preventing death or serious bodily harm, preventing a crime or fraud that would cause substantial financial injury, complying with a court order, and a practitioner defending themselves in a dispute with their own client. “I thought the idea was good and wanted to build it myself” appears nowhere on the list.
Confidentiality and Privilege Aren’t the Same Thing
These get used interchangeably and they shouldn’t be.
Attorney-client privilege is an evidentiary rule. It keeps confidential communications out of court, so nobody can compel your attorney to testify about what you told them.
The duty of confidentiality is an ethics rule and it’s broader. It covers all information relating to the representation, from any source, whether or not anyone ever sues. It applies at a dinner party as much as in a deposition.
For an inventor worried about disclosure, the ethics duty is the one doing most of the work. It’s what stops your attorney from mentioning your invention to another client in the same industry.
Who Enforces It
The USPTO’s Office of Enrollment and Discipline (OED) regulates everyone registered to practice before the Patent Office. It investigates complaints and can pursue discipline up to exclusion from practice. For patent attorneys, that sits on top of the state bar that admitted them, which has its own confidentiality rules and its own disciplinary process.
That’s two separate licenses at stake over one client’s disclosure. The economics are lopsided in your favor: a practitioner would trade a career for one invention of uncertain commercial value.
Worth knowing: both patent attorneys and patent agents are registered with the USPTO and bound by Part 11. The difference is that a patent attorney is also licensed by a state bar and can advise on matters beyond patent prosecution: litigation, licensing, contracts. A patent agent can prosecute applications but is not a lawyer. Either way, the confidentiality rule applies.
Verify Registration Before You Disclose
This takes about ninety seconds and almost nobody does it.
The USPTO maintains a public roster of registered patent attorneys and agents. Search the name. If the person you’re about to describe your invention to isn’t on it, they aren’t bound by 37 CFR Part 11, and the protection this whole article describes doesn’t apply to them.
That matters because “patent services” is a crowded field. Invention promotion companies, prototyping firms, and marketing outfits advertise heavily to inventors and are not subject to the USPTO’s professional conduct rules. Some are legitimate businesses. None of them owe you the duty described above unless a contract creates one.
The Risks That Are Real
Point the worry here instead. These are what actually cost inventors their rights.
Disclosing to everyone else without a filing or an NDA. Manufacturers, prototype shops, potential investors, trade show attendees, contract engineers. None are bound by the USPTO rules. Under the first-inventor-to-file system, a public disclosure can also start clocks that limit your own ability to file, particularly abroad, where many countries have no grace period at all.
Waiting to file. The U.S. awards patents based on who filed first, not who invented first. A provisional application establishes a priority date and gives you twelve months to file a non-provisional. Filing early is the most concrete protection available, and it’s protection that doesn’t depend on anyone’s good behavior.
Skipping written terms with non-attorneys. If a contractor is going to touch the invention, a non-disclosure agreement and clear IP assignment language should exist before the work starts, not after. Contractors typically own what they create unless the contract says otherwise.
Assuming an NDA with your patent attorney adds something. It generally doesn’t. The ethical duty is already broader than most NDAs, and it’s enforced by a licensing body rather than by you filing a lawsuit. Most practitioners will sign one if it helps you sleep, but it isn’t where your protection comes from.
Frequently Asked Questions
Can a patent lawyer steal my idea?
It would be a serious violation of 37 CFR 11.106, which bars a practitioner from revealing information relating to a client’s representation without informed consent. Enforcement runs through the USPTO’s Office of Enrollment and Discipline and, for attorneys, their state bar. Both licenses would be at risk.
Is my idea protected during a free consultation before I hire anyone?
Yes. The duty of confidentiality extends to prospective clients. You don’t have to sign an engagement letter or pay a fee for it to apply.
Should I ask a patent attorney to sign an NDA?
You can, but it usually adds little. The professional conduct rules already impose a broader obligation than a typical NDA, backed by disciplinary authority rather than private litigation.
What’s the difference between a patent attorney and a patent agent?
Both are registered with the USPTO and can prepare and prosecute patent applications, and both are bound by the same confidentiality rule. A patent attorney is additionally licensed by a state bar and can handle litigation, licensing, and other legal matters. A patent agent cannot.
How do I check whether someone is really a registered patent practitioner?
Search the USPTO’s public roster of registered patent attorneys and agents by name before you disclose anything. If they’re not listed, the USPTO conduct rules don’t reach them.
What if I’ve already told people about my invention?
Talk to a patent attorney promptly. Depending on what was disclosed, to whom, and when, you may still have options, but public disclosure can start deadlines that limit filing in the U.S. and can eliminate rights in countries with no grace period. Time matters here.
What actually protects my idea best?
Filing. A provisional application establishes a priority date and gives you twelve months to file a non-provisional. Combined with NDAs for the non-attorneys you work with, that’s protection that doesn’t rely on anyone else’s ethics.
Ask Your Questions Before You Disclose Anything
If you’re weighing whether to talk to a patent attorney at all, the confidentiality question deserves a straight answer before you get into the invention itself, and any practitioner worth hiring will give you one. Goldstein Patent Law works with inventors and businesses from offices in New York City and Red Bank, New Jersey, and with clients across the country. Schedule a strategy call and ask whatever you need to ask first.
