Statement by India at 13th session of SCP Agenda item on WIPO Study on the Client -Attorney Privilege  (24-27 March 2009, Geneva)

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 Thank you Mr. Chairman.  I would like to join other delegations in congratulating the WIPO Secretariat for compiling this useful report.  As some other delegations have pointed out, the study appears to draw extensively on work undertaken on this issue by international associations of Patent Attorneys and appears to reflect their concerns.  It would be useful to have a more comprehensive study that takes into account views of all stakeholders, especially from the perspective of public interest.

Mr. Chairman, the preliminary study does not seem to sufficiently emphasize Client-Attorney privilege as an exception to the general rule of disclosure. Indeed, where this exception is made available, it is provided on the basis that the relationship involved is of sufficient social importance to justify the sacrifice of availability of evidence.  Hence, the nature of this exception, where allowed, has to be relative to the socio-economic condition of the country concerned. Since these conditions vary from country to country, the nature and extent of protection against disclosure will vary. It is in reflection of this reality that Article 2(3) of the Paris Convention expressly leaves to national law, the establishment of provisions on judicial procedures allowing for diversity in judicial procedures between States, as noted in paragraph 16 of the Study.  My delegation is therefore of the view that every country should be allowed to set its level of privilege and extent of disclosure to suit its socio-economic circumstances, its ability and capacity to regulate and its specific level of development.

Mr. Chairman, the Study appears to favour harmonization of Client-Attorney Privileges.  Harmonization of client-Attorney privilege implies harmonisation of the law of exceptions to disclosure requirements.  Since disclosure is a substantive element of the patent system, harmonisation of client-attorney privilege can have substantive implications and involves elements of substantive harmonisation.  Such harmonisation is likely to keep more information out of the public domain, which may adversely affect the quality of patents, access to information and capacity to innovate, especially of developing countries.

As suggested by many other delegations, we would urge WIPO Secretariat to undertake a more detailed and comprehensive study on this subject, focusing on these aspects.

Thank you Mr. Chairman

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