Client attorney privilege

Client attorney privilege for european patent attorneys in Denmark

28 February, 2018, the Minister for Justice proposed a change to the Administration of Justice Act.  If the Danish parliament votes in favour of the change, it will change the level of confidentiality in the correspondence between European Patent Attorneys and their clients. At Inspicos, we welcome the proposal and hope for its early adoption.

As patent attorneys, we assist a wide range of large and smaller companies working with research and innovation. In addition to the daily work of drafting patent applications and invalidating competitors’ rights, we advise on complex technical, strategic and legal aspects. For example, we often consider whether a proposed product violates a patent, or how a patent can be invalidated.

If the Danish parliament votes in favour of the change, we will, as European Patent Attorneys, be in a better position to provide simple and direct advice without compromising our client’s legal position relative to foreign competitors.

Everyone except priests in the public church or other religious communities, doctors, and lawyers has a duty as a witness for a court. This legal privilege does, however, not extend to patent attorneys.

According to the rules currently in force, Danish companies may therefore be required to provide sensitive information exchanged with their patent attorney, and the patent attorney himself may be called as a witness.

The Confederation of Danish Industry has pointed out that, due to the current law, Danish companies in certain situations have been placed in an inferior position, relative to foreign companies. In particular, companies that are active in the US market may be exposed to the wide-ranging rules of evidence, the so-called “discovery rules”, applicable in the United States and certain other countries.

According to the proposal, European Patent Attorneys are added to the list of persons who are exempt from the obligation to witness and European patent attorneys are thus, in this respect, equated with Danish lawyers. The proposal aims at improving the equality between Danish companies and their foreign competitors.