This however may very well change now
Wouter Pors, Bird & Bird: “Privilege for IP professionals in the Netherlands” (publication based on a presentation given in Geneva on 23 May 2008 at the Conference on Client Privilege in Intellectual Property Professional Advice, organised by WIPO in cooperation with AIPPI) .
“(...) As mentioned in the introduction, there has apparently not been much need for or awareness of legal privilege for IP professionals in the past, other than lawyers admitted to the bar.
This however may very well change now. Last year the so-called Enforcement Directive was implemented in Dutch law, both in the Code of Civil Procedure and in the Dutch Patent Act. This new law provides for relief that did not exist before, such as a broader scope of disclosure and so-called evidential seizures, which allow IP right holders to conduct searches for relevant documents at the premises of alleged infringers. As a result of this, correspondence between IP professionals and their clients may be discovered and thus become available to the competition. These new instruments, which are now introduced throughout the European Union, require specific checks and balances, including legal privilege.
A much older development is the internationalisation of IP litigation. For at least the past twenty years there has been an increasing amount of multijurisdictional litigation, which means that communications between IP professionals and their clients run the risk to be discovered in foreign litigation. Since there is no guaranteed privilege under Dutch law, it is unlikely that a privilege for Dutch IP professionals – other than lawyers admitted to the bar – will be accepted by courts abroad. The Dutch legislator has never looked at the consequences of this development for legal privilege.
(…) Given the ever increasing international scope of intellectual property law and litigation and given the increased discovery-like instruments available in the Netherlands and abroad, a WIPO treaty providing for concrete legal privilege for IP professionals would be very welcome.”
Lees het gehele artikel hier.
