On June 24, 2016, the much anticipated amendments to the Patent
Act and Trademarks Act recognizing
patent agent privilege and trademark agent privilege will come into
force.
Canadian patent and trademark agent privilege
Under Canadian common law, solicitor-client privilege can
protect communications between lawyers and their clients from being
compelled as evidence in legal proceedings. In the civil law of
Québec, professional secrecy of advocates and notaries
provides similar protection. Historically, Canadian courts have
explicitly declined to recognize any similar privilege for
communications with patent agents, even for communications with
foreign patent agents who enjoyed such privilege in their foreign
home jurisdictions (see Lilly Icos LLC v Pfizer Ireland
Pharmaceuticals,
2006 FC 1465). In certain circumstances Canadian courts
have also found that communications between a lawyer who is also a
patent agent and that lawyer's client may not be privileged
