Expansion of privilege in India called for

Managing IP is part of Legal Benchmarking Limited, 1-2 Paris Gardens, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2026

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Expansion of privilege in India called for

The issue of protecting confidential client-IP advisor communications from forced disclosure on a global scale is complicated

In a panel discussion yesterday, Steven Garland of Smart & Biggar/Fetherstonhaugh said in reality there is a lack of coverage domestically in certain countries and a lack of coverage in cross-border scenarios. He said the solution may come from WIPO’s Standing Committee on the Law of Patents and a Group B+ proposed multilateral agreement.

Talking about India, Anand and Anand’s Pravin Anand said it is unfortunate that patent agents are not covered by privilege. “The need for privilege for intellectual property advisors stems from the fact there is increasing trade in IP rights and lawyers increasingly need technical advisers. Therefore the public interest dictates that what is available for lawyers should be available to patent agents,” he said.

Privilege issues throw up problems for multijurisdictional litigation. Anand noted that in Eli Lilly v Pfizer in Australia and Canada there was no privilege for communication with patent advisors. “This has led to forum shopping,” he said.

Reasons for the Indian government’s opposition to expansion of privilege include: it will keep out prior art leading to defective patents; privilege norms need to be set on socio-economic conditions; information can be protected through non-disclosure agreements; respecting the privileges of other countries violates India’s sovereignty; and TRIPS and the Paris Convention do not mandate such an expansion. Anand disagreed with these, noting among other things that making disclosure of prior art required by law would stop privilege being a problem and expanding privilege law would help India.

“There has been some effort since 2003 to try to change the law, to expand the definition of legal practitioner,” Anand said. He added there may be more hope with the new Indian government.

more from across site and SHARED ros bottom lb

More from across our site

Partner Rob Jacob unveils plans to offer a beginning-to-end trademark service, how to make prosecution profitable, and why IP ‘buy-in’ from the CEO stands the firm in good stead
Sponsored by CAS
CAS provides practical pointers on how intellectual property and R&D teams can work in tandem to unlock tangible benefits and avoid wasted spend
Sponsored by CAS
CAS explores how AI is transforming intellectual property, from inventorship and copyright disputes to new demands on patent attorneys
Sponsored by That.Legal
Gillian Tan of That.Legal discusses a recent decision by the Intellectual Property Office of Singapore and what it reveals about the evidential burden in bad-faith trademark claims
Attorneys at Di Blasi, Parente & Associados share how the protection of trade secrets strengthens innovation by bringing together legal practice, regulatory developments, and established international references
Jin Ooi, who joins as a partner today, said he is excited to offer a ‘rounded’ IP service as the firm deepens its litigation expertise in the UK and Europe
As generics celebrate, practitioners believe innovator companies should brace for an ‘uphill battle’ when trying to prove induced infringement
A team from Cooley shares how they overturned a massive damages award by emphasising that the opposing company’s trade secrets claims were time-barred
Sponsored by Licks Attorneys
Eduardo Hallak, Rafaella Oliveira, and Laís Souza of Licks Attorneys explain how the provision operates in practice, highlighting evidential hurdles and best practices for patent applicants
Sponsored by Liu, Shen & Associates
Chunyu Cui and Ziqing Wu of Liu, Shen & Associates say recent trends in China’s intellectual property courts indicate alignment with international standards and send a clear signal to the global market
Gift this article