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.