Divided Federal Circuit Panel Creates Patent Agent Privilege

[W]e find that the unique roles of patent agents, the congressional recognition of their authority to act, the Supreme Court's characterization of their activities as the practice of law, and the current realities of patent litigation counsel in favor of recognizing an independent patent-agent privilege.

Litigators – put your discovery pencils down. Inventors –pick up the phone and call your patent agent. The Federal Circuit is continuing the Jaffee¹ "evolutionary development of testimonial privileges" by way of creating a new patent agent-client privilege.

On March 7, 2016, the Federal Circuit resolved a split in the district courts over whether a patent agent-client privilege exists independent from the attorney-client privilege. The majority held it does. "Indeed, if we hold otherwise, we frustrate the very purpose of Congress's design: namely, to afford clients the freedom to choose between an attorney and a patent agent for representation before the Patent