It is the study with which WIPO Secretariat appears most comfortable with. The clarity on what the problem is, the international dimension of the problem and options for possible solution are all quite clear. But among the four studies under discussion in the WIPO Standing Committee on the Law of Patents (SCP), it is also the study that justifies, the best, my argument in the earlier post on the changing landscape of WIPO’s patent agenda that the jury is still out on how much WIPO has changed on the subject of patents.

A misnomer

This study unfairly claims to be one about ” client and attorney privilege” as opposed to a paper about “client and IP agent privilege”, if there is anything like that. Client -attorney privilege evokes specific assumptions just like doctor-patient privilege. While there are issues that need to be addressed, I would argue that it is one thing when you are talking about the privilege of a highly regulated service industry (attorneys, lawyers) and quite another if you are talking about a loose group called “IP advisers”. The study is essentially mis-titled.

A paper for Industry and patent agent associations

As I mentioned in the earlier post, a key problem with WIPO’s patent agenda previously was the an unashamed bias towards some industries and patent agents. This paper shows that the problem has not completely gone away. The verbatim reproduction of industry NGO “Resolutions” at paragraph 18 through to 26, including a report on “a straw pol”l of the Asian Patent Attorney’s Association (APAA) leaves one to wonder if this paper is about the balance between the interests of patent agent clients and the public interest in justice or about the needs of patent agents. The myriad meetings and literature on patents and standards, for example, got no mention in the study on the subject leave alone verbatim reproduction of resolutions. If AIPPI resolutions are reproduced in this study, why couldn’t the Access to Knowledge treaty be even referenced? why couldn’t the rich debates about transparency in the patent system and proposals be mentioned?

Professional privilege versus professional responsibility

One has to be forgiven for thinking that this paper was written by a patent agent or an agent of patent agents. How is it possible to talk about professional privilege without talking about professional responsibility? While the issue of courts requiring disclosure of assumed “privileged” information to be disclosed, for example, in discovery proceedings, is an important one, there is also a clear case for asking the question how clients could hold lawyers or patent agents responsible for breach of confidentiality when these lawyers or agents are across borders?

Research credibility

When some countries at the start of the week were asking about the authors of the WIPO studies I thought “surely, why ask? It is stated in the studies that they are Secretariat documents!” It should normally suffice to say it is the Secretariat which prepared the document. But with a study like this, the research credibility of the Secretariat might be so eroded that there are doubts as to whether it is a Secretariat study or an interest group study.

WIPO Secretariat, with the change of leadership, has the opportunity to redeem its image as a serious and credible source of analysis and information. Studies like this one on client-attorney privilege, however, raise serious question about the Secretariat’s research credibility.