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Patent Agent Privilege Exists, But Is Limited
In In re: Queens University at Kingston, PARTEQ Research & Development Innovations , No. 2015-145 (Fed. Cir. Mar. 7, 2016), the Federal Circuit determined that there is a “patent agent privilege” that protects communications between patent agents and their clients, so long as the communications relate to the patent agent's limited authority to practice law. While this is a promising protection for patent agents and their clients, the scope of the privilege is limited and uncertain, so reliance on the privilege should be discouraged.
Case Background
Queen's University at Kingston founded PARTEQ Innovations, an organization that commercializes intellectual property generated from university research. PARTEQ's intellectual property portfolio includes three patents directed to “Attentive User Interfaces”: U.S. Patent Nos. 7,762,665; 8,096,660; and 8,322,856. These patents relate to monitoring a user's attentiveness while using a device. Such attention tracking is useful where, for example, a smartphone application wants to ensure that a user watches an advertisement in full, so that a video advertisement could pause when the user looks away from the screen and resume when the user looks at the screen again.
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