Privilege extended to communications between patent and
trade-mark agents, and their clients
On June 24, 2016, amendments to the Patent Act and
Trade-marks Act extending privilege to certain confidential
communications between registered patent or trade-mark agents and
their clients went into force. The protections will extend to
existing communications that are not already part of a trial. These
provisions were part of Bill C-59, as part of the 2015 budget.
Unlike "merely" confidential communications,
privileged communications are generally protected from being
compelled as evidence at trial. Such protections already existed in
certain communications between lawyers and their clients, but did
not extend to patent or trade-mark agents. This created situations
of ambiguity where lawyers, who were also agents, communicate with
their clients regarding patents or trade-marks. By now extending
privilege to patent and trade-mark agents, these provisions provide
recognition of the importance of intellectual property protection
and, in particular, the need for frank and candid discussions
between agents and their clients.
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The Federal Court dismissed a motion by Apotex seeking particulars from Allergan's pleading relating to the prior art, inventive concept, promised utility and sound prediction of utility of the patents at issue.
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