Are Referral Fees Permitted For A Registered Patent Attorney

Christopher Regan, February 21, 2015

The question sometimes arises whether a registered patent attorney may participate in referral fee arrangements. The Code of Federal Regulations provides the answer. The pertinent language got juggled around a bit from 37 CFR § 10.32 (now removed) to 37 CFR § 11.702. The short answer is referral fees are not permitted. Here is the relevant language:

§ 11.702 Advertising.
(a) Subject to the requirements of §§ 11.701 and 11.703, a practitioner may advertise services through written, recorded or electronic communication, including public media.
(b) A practitioner shall not give anything of value to a person for recommending the practitioner’s services except that a practitioner may:
(1) Pay the reasonable costs of advertisements or communications permitted by this section;
(2) [Reserved] (3) Pay for a law practice in accordance with § 11.117; and
(4) Refer clients to another practitioner or a non-practitioner professional pursuant to an agreement not otherwise prohibited under the USPTO Rules of Professional Conduct that provides for the other person to refer clients or customers to the practitioner, if:
(i) The reciprocal referral agreement is not exclusive, and
(ii) The client is informed of the existence and nature of the agreement.
(c) Any communication made pursuant to this section shall include the name and office address of at least one practitioner or law firm responsible for its content.