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Journal of Intellectual Property Law & Practice Advance Access originally published online on November 7, 2008
Journal of Intellectual Property Law & Practice 2009 4(1):23-32; doi:10.1093/jiplp/jpn206
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© The Authors (2008). Published by Oxford University Press. All rights reserved

For the health of the economy and patent system: rationale and scope of patent attorney privilege

Chris Dent, Elizabeth Hall and Andrew Christie*
Legal context: 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 recognized in all jurisdictions and there is variation in the extent of the privilege in those countries where it does exist.

Key points: 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 other legal privileges, the article finds that patent attorney privilege is a justifiable protection for communications between clients and their patent attorneys. If there was a possibility that the communications would have to be revealed in court, this may impact the full and frank nature of the communications. Such communications assist patent attorneys, as professionals with expertise in a specialized field, to provide clients with appropriate and effective advice. That advice goes directly to the maintenance and benefit of the patent system and the overall economy.

Practical significance: As a result of the variation in the extent of the privilege around the world, there are moves afoot to reform its operation. This article reveals strong public policy reasons for the recognition of a patent attorney privilege. These grounds also reinforce the need to ensure that privilege is not unduly limited in its operation in any jurisdiction.

Correspondence: * Senior Research Fellow, Intellectual Property Research Institute of Australia (IPRIA); Senior Lawyer, Australia and New Zealand Banking Group Limited; Davies Collison Cave Professor of Intellectual Property, Melbourne Law School. Email: c.dent{at}unimelb.edu.au


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