European patent attorneys are exempted from giving evidence

The Danish Parliament has adopted new rules entailing that patent attorneys are exempted from the duty to give evidence.

The amendment to the Danish Administration of Justice Act that came into force on 1 July 2018 entails an extension of the rule on the exemption from giving evidence in Section 170(1) of the Administration of Justice Act, according to which certain professions due to the exercise of their duties are exempted from giving evidence in court and hence giving evidence about sensitive matters. 

Previously, the provision applied to doctors, defence counsels, court mediators, ministers of religion of the Danish State Church and lawyers, which has to be viewed in the light of the duty to observe professional secrecy that applies to these professions. 

Now the provision, including the amendment, also comprises patent attorneys to the extent that these are not ordered to give evidence about matters that have come to their knowledge in the exercise of their duties.

The new rule on the exemption from giving evidence only comprises patent attorneys that are on the list pursuant to Article 134(1) of the European Patent Convention, meaning European patent attorneys. This limitation is justified by the fact that European patent attorneys are bound to professional secrecy about information that comes to their knowledge in the exercise of their duties.

Patent attorneys assist companies to a great extent with advice in connection with research, product development and patent cases. In that connection, patent attorneys acquire great knowledge of sensitive information and trade secrets. The amendment to the Act is indeed a result of the need for a legal privilege for European patent attorneys.

The amendment entails that Danish patent attorneys in US cases cannot be ordered to disclose sensitive business information. The US courts have, to a certain extent, allowed patent attorneys from abroad a legal privilege pursuant to US law if a legal privilege applies in the patent attorney's native country.

With the amendment, the Danish companies will be competitive in the same way as many foreign companies in relation to their use of European patent attorneys.

You may read about the amendment here (in Danish).

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