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Confidentiality of Communications between Patent Advisors and their Clients

It is widely recognized that protecting the confidentiality of professional advice provided by patent advisors[1] to their clients promotes frank and open communications necessary to delivering high-quality advice. Consequently, in most jurisdictions, whether they follow civil law or common law traditions, mechanisms are in place to safeguard confidentiality of such advice. This protection is typically ensured through various means, including contractual arrangements between patent advisors and their clients, codes of conduct set by professional associations, or through legislation.

In some common law countries, the confidentiality of communications between the client and patent advisor is protected by the legal doctrine of “privilege” against discovery, while in some civil law countries, a patent advisor has the right to refuse testifying in court on matters falling under the professional secrecy obligation.

As patent protection is increasingly international, the complexities of maintaining confidentiality of communications between clients and their patent advisors across borders comes to the forefront. This raises questions about whether and to what extent confidentiality of communications between a client and its patent advisor can be upheld in court proceedings in other jurisdictions and how this confidentiality can be preserved beyond national borders.

Information on policy, law and practice relating to this topic, at the international and national levels (regularly updated), is available.

SCP activities on the topic

The SCP has been exploring the cross-border aspects of confidentiality in communications between clients and patent advisors, addressing the concerns described.

Documents prepared by the Secretariat

  • Confidentiality of Communications Between Clients and their Patent Advisors: Update (SCP/30/7)
  • Confidentiality of Communications between Clients and their Patent Advisors: Compilation of Laws, Practices and other Information (SCP/29/5), and Summary of Document SCP/29/5
  • Compilation of Court Cases With Respect to Client-Patent Advisor Privilege (SCP/25/4)
  • Confidentiality of Communications between Clients and their Patent Advisors: Compilation of Laws, Practices and other Information (SCP/20/9), and Summary of Document SCP/20/9
  • Approaches and Possible Remedies to Cross-border Aspects of Confidentiality of Communications between Clients and Patent Advisors (SCP/18/6)
  • Information on Cross-border Aspects of Confidentiality of Communications Between Clients and Patent Advisors (SCP/17/5)
  • Confidentiality of Communications between Clients and their Patent Advisors (SCP/16/4 Rev.)
  • The Client-Patent Advisor Privilege (SCP/14/2)
  • The Client-Attorney Privilege (SCP/13/4)

Conferences, sharing sessions and seminars

  • Conference on Client Privilege in Intellectual Property Professional Advice (organized by WIPO in cooperation with the International Association for the Protection of Intellectual Property (AIPPI), May 22 and 23, 2008, Geneva.)
  • Sharing Session by Members and Observers of the SCP as Well as Relevant Practitioners on Recent Developments and Experiences Concerning Confidentiality of Communications between Clients and Their Patent Advisors (2023)
    - Presentations are available at SCP/35 under “Other related documents”
  • Sharing Session Focusing on Cross-Border Aspects of Confidentiality of Communications between Clients and Their Patent Advisors (2022)
    - Presentations are available at SCP/34 under “Other related documents”
  • Sharing Session by Practitioners and Member States on Recent Developments and Experiences with Respect to Confidentiality of Communications between Clients and Their Patent Advisors (2019)
    - Presentations are available at SCP/31 under “Other related documents”
    - Report of the Sharing Session (SCP/32/5)
  • Sharing Session on the Experiences and Court Cases of Member States in Implementing the Confidentiality of Communication between Clients and Their Patent Advisors Through National Legislation, Including Cross-Border Issues (2018). For the discussions, please consult the report of SCP/28
  • Sharing Session on the Experiences of Member States in Implementing the Confidentiality of Communication between Clients and Their Patent Advisors Through National Legislation, Including Cross-Border Issues (2017). For the discussions, please consult the report of SCP/27
  • Sharing Session Among Member States Concerning Confidentiality Protection Applied to Different Types of Patent Professionals and to National and Foreign Patent Advisors (2015)
    - Presentations are available at SCP/23 under “Other related documents”
  • Seminar on the Confidentiality of Advice from Patent Advisors (SCP/21/INF/3 REV.) (2014)
    - Presentations are available at SCP/21 under “Other related documents”

Other related information

1 The term “patent advisor” is a general term, describing a person who is a professional representative for the purposes of patent-related matters, such as a “patent attorney” or “patent agent”. Depending on the national law, such advisor may be a qualified lawyer or non-lawyer.