USPTO Proposes Rule Recognizing Privilege Between Clients And Patent Practitioners At PTAB

The United States Patent and Trademark Office (USPTO) has released a proposed change to the Rules of Practice before the Patent Trial and Appeal Board (PTAB) clarifying the extent to which privilege extends to communications between non-attorney patent practitioners and their clients. Currently, the Rules of Practice do not address the privilege status of communications for U.S. patent agents or foreign patent practitioners. Instead, the USPTO decides privilege for such patent practitioners on a case-by-case according to common law principles, which the USPTO states may lead to administrative inefficiencies and inconsistent outcomes. The proposed rule recognizes that communications between non-attorney U.S. patent agents or foreign patent practitioners and their clients, when pertaining to authorized practice before the USPTO, are privileged to the same extent as communications of the same sort between U.S. patent attorneys and their clients. Thus, under the proposed