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Cheers at DI: Patent attorneys to gain witness protection

A new bill will conclude a ten-year fight for Danish legislation allowing the clients of patent attorneys to keep secret the attorneys’ advice. This will make life easier for companies of all sizes with international ambitions, says the Confederation of Danish Industry.

Publiceret: 21.12.2017
Af Felix Bekkersgaard Stark mail

“A lawsuit over infringement of a patent in the US can be a matter of life or death even for large global companies. And although it may seem like a distant market, even smaller and newly-started Danish companies must ensure that they are protected against patent lawsuits from the outset.”

This is the advice of Mikkel Roed Trier, partner in the Scandinavian/Asian patent consultancy firm AWAPATENT and chairman of the Association of Danish Intellectual Property Attorneys, ADIPA.

He is pleased that Minister of Justice Søren Pape Poulsen has today presented a new bill for the protection of patent advisors, which will guarantee witness exclusion for European patent agents in Denmark.

This means that their advice will henceforth be confidential in the same way that the advice of Danish lawyers currently is.
“As it stands, we often have to provide legal advice orally in order to ensure that the client is not forced to submit written advice in a lawsuit in the US, for example. It is a daily challenge for us, and for our clients it is inconvenient and expensive to be unable to receive written advice in cases that can run for many years,” says Mikkel Roed Trier.

Danish companies vulnerable in the courtroom

American lawyers and patent attorneys are ensured witness protection through their client-attorney privilege, and in a lawsuit between a Danish and an American company, American courts would look at whether the Danish company’s Danish attorneys have equivalent protection. The current situation therefore means that the Danish company may have to submit written advice from their patent attorney, while the American company is not required to do so. It is expected that the new rules will give Danish patent attorneys witness protection on equal footing with US attorneys.

“In the US, many lawsuits end in settlements. But the current situation puts Danish companies at a fundamental disadvantage and means they have a higher risk of losing a lawsuit. Danish companies may therefore also be at a disadvantage in settlement negotiations purely because there is a risk that they may be forced to submit written advice,” says Mikkel Roed Trier.

Ten year effort

Throughout the past ten years, DI and ADIPA have therefore worked to have the Danish rules changed so they correspond to those of neighbouring countries and to what will apply in the proposed common European patent court.

“It’s rather odd that it has taken so long to get to this point, because no one is actually against the rules being changed, and it should therefore pass through the legislative mill at Christiansborg easily. In any case, it is extremely positive to see that it is now likely to happen,” says Chief Consultant Lars Holm Nielsen, DI.

He believes that it will benefit smaller companies in particular.

“It will benefit all companies with a high research and development level. Bigger companies usually know what to do to avoid problems, but now they will be spared a great deal of hassle, and the bill will put smaller companies in a better position, because they will be automatically protected,” says Lars Holm Nielsen.

Minister of Justice Søren Pape Poulsen, who is behind the bill, says:
“The business community has expressed a clear desire for rules that ensure confidentiality in the relationship between a company and its patent attorney in connection with patent lawsuits. We see this in neighbouring countries such as Sweden and Finland. To help ensure that Danish companies have optimal conditions in the global competition, the government wants to expand the rules on witness exclusion so they also include patent attorneys. We will thereby strengthen confidentiality between a patent attorney and their client.”

It’s rather odd that it has taken so long to get to this point, because no one is actually against the rules being changed, and it should therefore pass through the legislative mill at Christiansborg easily.

CHIEF CONSULTANT LARS HOLM NIELSEN, DI
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PUBLISHED: 12/21/2017 LAST MODIFIED: 12/21/2017