Guide

For patent attorneys: what do you say when a client asks how to make money from a granted patent?

Tell the client that making money from the patent is a commercial question with legal edges, ask them four short questions to find out which commercial situation they are in, and refer the commercial work to someone who does it while you keep every legal question. A clean referral leaves you as counsel of record on the claims, the licenses, and any sale, with no fee arrangement attached.

All guidesUpdated November 5, 2026

Patent attorneys hear the same question at the end of almost every successful prosecution: now what, and how do we make money from it? It is a fair question and an awkward one. The client wants a commercial answer. The attorney is trained and licensed to give legal ones, and the commercial answer, who would pay and how to reach them, sits outside the engagement.

We wrote this for counsel who want a better response than a shrug or a broker's phone number. It covers the questions that sort the client's situation, the signs that the commercial work should go to someone else, what a clean referral looks like, and what to expect from a commercial firm once the client is working with one. It cites the professional rules that bear on referrals and does not interpret them; your own jurisdiction's rules govern.

Which four questions sort the client's situation?

Ask whether anyone outside engineering can explain the product, whether the client knows who would pay, whether the client already ships the technology, and whether the client already knows a specific buyer. The answers place the client in one of four situations, and each needs different help.

Most clients answer the first question honestly once it is put plainly. Inventors in security and identity are often brilliant at the mechanism and stuck on the product, and they know it. The second question tends to produce a list of famous companies, which is a sign the answer is no.

Can someone outside engineering explain the product? If not, the first need is a product definition, before any market work.
Does the client know who would pay, and why? If not, the need is a market answer: use cases, buyers, and the evidence behind each.
Does the client already ship the patented technology? If so, and the claims reach fields the client will never sell into, the need is licensing that reach without harming the core business.
Does the client already know a buyer who needs it? If so, the need is packaging, getting into the room, and running a process to a term sheet.

When should you refer the commercial work?

Refer when the client's next step is commercial rather than legal: defining a product, finding licensees, validating a market, or running outreach. Keep the work when the next step is a filing, an opinion, a license draft, or a dispute.

The moments that most often call for a referral are recognizable. A granted patent with no commercial answer. A continuation in drafting, where the claims that would open the best market will never be written unless someone asks the commercial question first. An operating company whose claims reach fields it will never sell into. An inventor or a divesting company whose patent sits below the threshold brokers will take.

The continuation case deserves a word. A commercial read done before the continuation is filed can produce the questions that shape it: which use cases a buyer would pay for, and whether the current claims reach them. That is cheap to learn before filing and expensive to learn after.

How do we keep a referral clean?

Our practice: no fee or other value flows between counsel and us in either direction, we do none of the legal work, and the client knows exactly who is doing what. Whether your jurisdiction requires anything more is a question for its rules, and the model rules below are where most of them start.

We cite the American Bar Association model rules because most state rules derive from them, not because they settle any question for your practice. Read your own state's version and any ethics opinions that apply to you. Our own practice does not depend on interpreting them: we pay counsel nothing for referrals, take nothing from counsel, and keep to the commercial work.

The legal boundary matters as much as the money. A commercial firm should never construe claims, give validity opinions, assert patents, or draft agreements. If a firm offers any of those to your client, the referral is not clean whatever the fee arrangement.

No fee share and no referral payment in either direction.
No claim construction, validity opinions, assertion, or drafting by the commercial firm.
Counsel's access to the commercial work is a condition of the engagement.
The client is told plainly who does the legal work and who does the commercial work.

Sourced facts

ABA Model Rule 5.4(a) begins: a lawyer or law firm shall not share legal fees with a nonlawyer, subject to the exceptions the rule lists.

Source: American Bar Association, Model Rules of Professional Conduct, Rule 5.4: Professional Independence of a Lawyer. Checked November 5, 2026.

ABA Model Rule 7.2(b) bars a lawyer from giving anything of value for recommending the lawyer's services, with listed exceptions, including a reciprocal referral agreement with a nonlawyer professional that is not exclusive and that the client is told about.

Source: American Bar Association, Model Rules of Professional Conduct, Rule 7.2: Communications Concerning a Lawyer's Services. Checked November 5, 2026.

How is the client's confidential material handled?

Intake should start with what is public, the granted patent and a public description, and nothing confidential should move until a mutual NDA is signed and the firm's data-handling terms are in writing. You should be able to read those terms before your client sends anything.

Claim language beyond the granted patent, unfiled variants, invention disclosures, and the roadmap all wait for the signed documents. If a firm cannot describe in writing, before intake, what it receives, who sees it, and what happens to the material at the end, that is a reason to look elsewhere.

Security, identity, and trust clients are often more sensitive about this than the attorney expects. Their roadmaps are attack surface, their customers are regulated, and some of their engineering is export-controlled. A commercial firm that works in this field should treat that as normal.

What should you expect to receive back?

A list of questions addressed to you. Good commercial work on a patent produces questions for counsel: which use cases the claims cover, where a continuation would help, which license structures need care, and what the client should not say to a buyer yet.

Those questions are the handoff between the commercial work and yours, and they should arrive in writing, early, before the client approaches anyone. They are also how you can tell the commercial firm is respecting the line. A firm that answers claim questions itself instead of sending them to you is stepping into work that belongs to you.

Expect to draft and close every license and sale the commercial work produces. The firm's job is to get the client to a term sheet worth your time.

Which clients should you not refer for commercial work?

Clients whose next step is legal, clients who want enforcement, and clients who are looking for someone to promise them revenue. Commercial work helps an owner who wants to define, validate, and sell or license a technology; it does not help one who has already decided the answer is a lawsuit or a windfall.

There is a fourth group worth naming: clients without a granted patent or a filing. Commercial work on an unprotected idea can create disclosure problems, and the right first step is your work, not ours. Once there is a filing, the product and market questions can run alongside prosecution, and sometimes should.

Some clients will also ask whether the commercial work can be done cheaply by a generalist. Sometimes it can. The question to put to the client is whether the people doing it know the buyers in the client's market well enough to reach them, because desk research on security and identity buyers is easy to produce and rarely leads to a meeting.

What does good commercial work look like from counsel's side?

Written, graded, and early. You should see the commercial firm's questions before the client approaches anyone, every claim the firm makes about the market should carry an evidence grade, and nothing it produces should read like a legal conclusion.

A claim explainer that is labeled commercial analysis on every page, not claim construction.
Use cases tied to specific claims, with any use case lacking a claim basis marked as a roadmap or continuation question for you.
Evidence grades on every statement about buyers: Confirmed, Verbal, or Inferred.
A list of what the work did not settle, so nobody mistakes an assumption for a finding.
No outreach before you have seen what will be shared.

What should you tell the client today?

Something like this: the patent settles what you own; who pays, and for what, is a separate question, and here is who answers it while I keep handling the legal side. Then send the referral with the patent number and one sentence on the situation.

Clients remember the attorney who had an answer. They also remember the one who sent them somewhere that cost them their claims or their customers. The four questions, the clean referral, and written data-handling terms are how you give the first impression without risking the second.

Questions for your patent counsel

Does our state's version of the model rules, or any ethics opinion here, add conditions to referring a client to a nonlawyer commercial firm?
Should the engagement letter with the client mention the commercial firm's role and the boundary between the two?
Which of the client's materials need to wait for a signed NDA and written data-handling terms?
Is a continuation still open, and when should the commercial questions be answered to inform it?

Questions we hear

Can a patent attorney refer a client to a non-lawyer commercialization firm?

Referrals between lawyers and nonlawyer professionals are common. What attaches to them, such as payments, reciprocal arrangements, and disclosure to the client, is governed by your jurisdiction's rules of professional conduct, which you should check.

Will the commercial firm try to take over the legal work?

A good one will not. It should send claim questions to you in writing, leave every opinion and agreement with you, and make your access a condition of the work.

What does a client usually need first after grant?

In security and identity, a product definition more often than market research: a way to explain what the patent makes possible to someone outside engineering.

What should the referral email say?

The patent number, one sentence on the client's situation, and whether the client knows you are referring them. Nothing confidential belongs in it; the commercial firm starts from what is public and waits for a signed NDA for the rest.

Where Patenture fits

Patenture takes referrals from patent counsel for security, identity, and trust technology. We never construe claims, give validity opinions, assert patents, or draft agreements, and there is no fee share with counsel in either direction. Your access is a condition of every engagement, and the counsel question list is addressed to you. To refer, write to info@patenture.com with the patent number and a sentence on the situation, or book a short call and bring the client in when it fits.

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By Mike Dayton. Published November 5, 2026. Updated November 5, 2026.

Every engagement starts with a mutual NDA and a written data-handling annex your counsel can review before intake. How confidentiality works.

Patenture is not a law firm. The claim explainer and the counsel question list are commercial analysis; claim construction, validity, and prosecution strategy stay with your patent counsel, whose access is a condition of the engagement.

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