Publiceret: 21.12.2017Af Felix Bekkersgaard Stark mail
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.
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.