Privilege and intellectual property
Privilege and intellectual property

The following IP guidance note provides comprehensive and up to date legal information covering:

  • Privilege and intellectual property
  • Principles
  • Legal advice privilege
  • Litigation privilege
  • Litigation privilege and legal advice privilege—make sure you are not left without either of them
  • Standard disclosure in litigation
  • Litigation privilege applies to patent proceedings
  • Privilege and expert witnesses
  • Without prejudice privilege
  • Privilege and experiments in patent cases
  • more

Principles

This Practice Note focuses on IP and privilege. It is not designed to set out the general law of privilege but it is worth expanding on some basic principles. Privilege arises from the need for a client and lawyer to have candid communications on how to protect the client's interests, without those being discloseable to an opposing party or to the court. While the following are not the only types of privilege, the two main types to be concerned with in the IP sphere are 'legal advice privilege' and 'litigation privilege'. The rules of each, as evolved through case law, can have very different practical effects. These two types of privilege are sometimes collectively called 'legal professional privilege' but this language is confusingly similar to 'legal advice privilege' and so will not be used again in this note.

Understanding the differences between legal advice privilege and litigation privilege is of huge practical significance and is not just of legal interest.

The particular features of any real life situation will dictate what sort of privilege can be relied on. The requirements to be met before it is possible to gain protection from either type of privilege are slightly different.

Legal advice privilege

Legal advice privilege can protect communications between a lawyer and the client, whether or not they are talking