Legal privilege for patent attorneys before Danish courts

After more than 10 years of effort from Danish IP and industry associations, patent attorneys may finally be given legal privilege before the Danish courts.

On February 28 2018 Justice Minister Søren Pape Poulsen proposed a number of changes to the Administration of Justice Act, of which the most important relates to legal privilege for patent attorneys.

Under the existing legal framework, a patent attorney may be called as a witness and his or her advice may be used as evidence before the Danish courts. The proposed changes seek to resolve this issue.

In the United States, discovery obliges parties to present all relevant information to the courts. Such information may include correspondence with external or internal patent attorneys. However, if the information falls under the client-attorney privilege, it is not taken into consideration in the court ruling. Further, where information and advice is exchanged with foreign lawyers or advisers, US courts tend to investigate whether the foreign jurisdiction applies a legal privilege corresponding to that applied in the United States – if so, the US court accepts such information and advice as client-attorney privileged.

For years the Administration of Justice Act has ensured client-attorney privilege for lawyers before the Danish courts and therefore before the US courts as well. However, no such privilege has applied to patent attorneys. This has posed a number of challenges for patent attorneys and their clients – for example, in many cases that potentially involve the US jurisdiction, only oral advice is given.

Fortunately, Poulsen appears to have heeded the industry’s needs with his proposed amendments to the Administration of Justice Act. If Parliament votes in favour of the changes, companies and their European patent attorney advisers will enjoy the same legal privilege as lawyers. Further, it would put European patent attorneys in a similar position before Danish courts as patent attorneys in other European states that have already dealt with this issue (eg, Germany, Sweden and Finland).

The proposed changes to the Administration of Justice Act will now enter Parliament’s obligatory three-stage reading process before being voted on.

Poulsen proposed that the changes should enter into force on July 1 2018.