Expansion of privilege in India called for

Managing IP is part of Legal Benchmarking Limited, 1-2 Paris Gardens, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2025

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Expansion of privilege in India called for

The issue of protecting confidential client-IP advisor communications from forced disclosure on a global scale is complicated

In a panel discussion yesterday, Steven Garland of Smart & Biggar/Fetherstonhaugh said in reality there is a lack of coverage domestically in certain countries and a lack of coverage in cross-border scenarios. He said the solution may come from WIPO’s Standing Committee on the Law of Patents and a Group B+ proposed multilateral agreement.

Talking about India, Anand and Anand’s Pravin Anand said it is unfortunate that patent agents are not covered by privilege. “The need for privilege for intellectual property advisors stems from the fact there is increasing trade in IP rights and lawyers increasingly need technical advisers. Therefore the public interest dictates that what is available for lawyers should be available to patent agents,” he said.

Privilege issues throw up problems for multijurisdictional litigation. Anand noted that in Eli Lilly v Pfizer in Australia and Canada there was no privilege for communication with patent advisors. “This has led to forum shopping,” he said.

Reasons for the Indian government’s opposition to expansion of privilege include: it will keep out prior art leading to defective patents; privilege norms need to be set on socio-economic conditions; information can be protected through non-disclosure agreements; respecting the privileges of other countries violates India’s sovereignty; and TRIPS and the Paris Convention do not mandate such an expansion. Anand disagreed with these, noting among other things that making disclosure of prior art required by law would stop privilege being a problem and expanding privilege law would help India.

“There has been some effort since 2003 to try to change the law, to expand the definition of legal practitioner,” Anand said. He added there may be more hope with the new Indian government.

more from across site and SHARED ros bottom lb

More from across our site

The insensitive reaction to a UK politician crying on TV proves we have a long way to go before we can say we are tackling workplace wellbeing
Adrian Percer says he was impressed by the firm’s work on billion-dollar cases as well as its culture
In our latest interview with women IP leaders, Catherine Bonner at Murgitroyd discusses technology, training, and teaching
Developments included an update in the VAR dispute between Ballinno and UEFA, the latest CMS updates, and a swathe of market moves
The LMG Life Sciences Americas Awards is thrilled to present the 2025 shortlist
A new order has brought the total security awarded to a Canadian tech company to $45 million, the highest-ever by an Indian court in an IP case
Andrew Blattman reflects on how IP practices have changed and shares his hopes for increased AI use and better performance on the stock market
The firm said major IP developments included advising on a ‘landmark’ deal involving green hydrogen production, as well as two major acquisitions
The appointments follow other recent moves in the European market as firms look to bolster their UPC offerings
Deborah Kirk discusses why IP and technology have become central pillars in transactions and explains why clients need practically minded lawyers
Gift this article