What Makes a Case Right for a Contingency Patent Lawyer? Here's What We Evaluate

Hiring a contingency patent lawyer is one of the most powerful options available to patent holders looking to enforce their rights without paying upfront legal fees. But not every case is the right fit for contingency representation. Because the attorney assumes financial risk and only gets paid if there’s a recovery, each case must meet a set of strategic, legal, and commercial criteria before being accepted.

So, what exactly does a contingency patent lawyer look for when evaluating a case?

In this blog, we’ll break down the core factors used to determine whether your situation qualifies for contingency representation—and how understanding these factors can help you better prepare your case for success.



What Is Contingency Patent Representation?

Before diving into the evaluation process, let’s clarify what a contingency patent attorney does.

Instead of charging an hourly rate or upfront retainer, these lawyers handle cases with no initial cost to the client. Their compensation comes solely from a successful outcome, typically as a percentage of the recovered amount—whether through a settlement, licensing deal, or litigation award.

This structure gives clients access to experienced legal counsel while shifting the financial risk onto the attorney. But in exchange, attorneys must be selective in the cases they take.

Key Factors That Determine Contingency Case Viability

1. Patent Validity and Enforceability

The foundation of any viable case is a strong, enforceable patent. During an initial review, the attorney will examine:

  • Whether the patent is still in force (not expired or lapsed)

  • The clarity and scope of the patent claims

  • The strength of the patent’s prosecution history

  • Potential challenges to validity (e.g., prior art or obviousness)

If there are red flags that could make the patent vulnerable in court, it may be difficult to proceed on contingency.

2. Evidence of Infringement

The attorney must be able to reasonably prove that a third party is using, making, selling, or offering a product or process that infringes the patent claims. Strong evidence often includes:

  • Product documentation, technical specifications, or marketing materials

  • Reverse engineering reports

  • Expert analysis comparing the infringing product to the patent claims

The closer the infringer’s product or service aligns with the patented invention, the stronger the case.

3. Commercial Use and Financial Exposure

Even if infringement is clear, it must be commercially significant to warrant the legal investment. The best cases involve:

  • Infringers with significant sales revenue

  • Widely distributed or heavily marketed products

  • Substantial market impact or business disruption

If the infringer is a small company or has minimal revenue, the potential recovery might not justify the legal costs.

4. Recoverability of Damages

A contingency patent lawyer isn’t just focused on winning the case—they’re focused on recovering compensation. That means the target must have the ability to pay, either directly or through insurance coverage. During evaluation, attorneys assess:

  • The infringer’s financial condition

  • Whether the company has assets or revenue streams

  • Potential for an enforceable judgment or favorable settlement

A legally strong case against an insolvent defendant may not be economically viable.

5. Strength of the Patent Portfolio

While single-patent enforcement cases can be viable, having a portfolio of related patents adds leverage. A broader portfolio:

  • Creates more pressure in settlement negotiations

  • Reduces the chance of design-around workarounds

  • Demonstrates commercial intent and preparedness

Attorneys often favor portfolios with strategic value in a specific industry or technology area.

6. Patent Owner’s Goals and Expectations

Contingency representation is a partnership, so alignment between the client and lawyer is key. During the review process, attorneys evaluate whether:

  • The patent owner has realistic expectations

  • The client is open to negotiation and settlement

  • The inventor or business has a long-term IP strategy

An inventor seeking a quick windfall or refusing to compromise may not be a good fit for contingency representation.

Common Types of Cases That Work Well on Contingency

Some examples of situations that frequently qualify for contingency patent litigation:

  • A startup’s patented technology is being used by a large competitor without permission

  • A university holds patents being used in commercial products without licenses

  • An inventor has documented infringement from multiple industry players

  • A small business holds a foundational patent in a high-value sector like fintech, biotech, or IoT

If your situation involves enforceable IP, provable infringement, and a commercially active target, you may have a strong case.

What If My Case Doesn’t Qualify?

Even if your case isn’t accepted on contingency, a reputable patent attorney can suggest other options such as:

  • Hybrid fee arrangements (reduced hourly plus success bonus)

  • Flat-fee licensing negotiation

  • Third-party litigation funding

  • Portfolio audits to identify other monetization opportunities

Sometimes, improving documentation, gathering stronger infringement evidence, or filing continuation patents can enhance case viability for contingency later.

Preparing for an Evaluation

To streamline your case review, have the following ready:

  • Copies of your patent(s) and filing history

  • Evidence of potential infringement (screenshots, product data, etc.)

  • Timeline of relevant events

  • List of suspected infringers and their public activity

  • Your business or monetization goals

The more clearly you can present the facts and commercial context, the easier it will be for the attorney to assess your opportunity.

Conclusion

Contingency patent representation offers a powerful path for innovators to pursue justice and unlock the financial value of their inventions—without taking on legal risk. But to qualify, your case must meet key legal, technical, and commercial criteria.

If you believe your patent is being infringed and want to explore whether you qualify for contingency representation, the team at Katz Law Firm is ready to evaluate your case with no cost or obligation.

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