The introduction of patent agent privilege in Canada

摘要

While communications between lawyers and clients are typically regarded as privileged and protected from disclosure in Canada, privilege has not always applied to client communications with patent agents. Historically, Canadian courts have declined to recognize patent agent privilege, including foreign patent agent privilege. The recent enactment of amendments to the Canadian Patent Act in 2016 establishing patent agent privilege is considered long overdue and has been welcomed by patent agents and clients alike. However, the legislative language of the provisions governing patent agent privilege raises some uncertainty regarding the scope of protection afforded by patent agent privilege. A review of the concept of privilege, the role of a Canadian patent agent and the changes effected by the implementation of the amendments to the Patent Act provide helpful insight into the types of activities and communications to which patent agent privilege will and will not apply. The applicability of privilege to communications between patent agents and clients is an issue that can arise in the context of pharmaceutical patent litigation. The litigation of successful patented medicines is highly contentious, and litigants will typically spare no expense in trying to undermine the validity of a patent, including attempting to gain access to communications between a client and a patent agent. When patent agent privilege does not apply, nor any other type of privilege, such communications could be forcibly compelled in a legal proceeding and result in potentially harmful exposure to a patentee.