For the Health of the Economy and Patent System: Rationale and Scope of Patent Attorney Privilege

Abstract

There exists, in some countries, a patent attorney privilege. This privilege allows an actual or potential holder of patent rights to withhold from a court communications that it has had with its patent attorney. The privilege is not recognised in all jurisdictions and there is variation in the extent of the privilege in those countries where it does exist. This article explores the rationale for the privilege in order to see if there is a sound basis upon which to found it. Through a consideration of the justifications for the other relational privileges recognised in law, the article finds that patent attorney privilege is a justifiable protection for communications between clients and their patent attorneys. This is because the specialised knowledge and expertise of patent attorneys allows them to provide appropriate and effective advice to their clients, with that advice directly going to the maintenance and benefit of the patent system and the overall economy. If there was a threat the communications would have to be revealed in court, then this may impact on the full and frank nature of the communications.

Keywords: Patent attorney, privilege