Can a patent attorney steal my idea?
If you’ve invented something and need to patent protect it, you’ll likely need the assistance of an Australian registered patent attorney.
However, your invention might be the result of countless hours of R&D and significant financial investment — is your invention really going to be safe in the hands of a patent attorney you know nothing else about?
If you have concerns about whether a patent attorney might try and capitalise on your invention for themselves, you’ll want to read on. In this post, we dispel any doubt that a patent attorney would do such a thing.
In short, patent attorneys are obligated to act in your best interests and to preserve the confidentiality of your information.
Confidentiality and the Code of Conduct
All Australian and New Zealand-registered patent attorneys (as well as all Australian-registered trade mark attorneys) are subject to the Code of Conduct for Trans-Tasman Patent and Trade Marks Attorneys 2018. To be clear, this Code of Conduct is a statutory instrument and has the force of law – it isn’t just a set of guidelines and idealistic aspirations.
Section 18 of the Code of Conduct stipulates the following:
Unless permitted or required by law, a registered attorney must not use or disclose, or allow to be used or disclosed, confidential information obtained from or on behalf of a client, a former client or a prospective client without the informed consent of the client.
Beneficially, this obligation of confidentiality extends not just to former and existing clients, but to prospective clients too. In other words, even if you don’t ultimately engage a patent attorney, the confidential information you share with them will remain exactly that – confidential.
If you’ve read our patent application page, you’ll appreciate the importance of keeping your invention confidential before applying for patent protection. To dispel any doubt, please rest assured that disclosing your invention to a registered Australian patent attorney does not constitute a public disclosure of your invention.
Confidentiality and professional legal privilege
While we’re on the topic of confidentiality, let’s quickly look at the issue of legal professional privilege.
Legal professional privilege protects communications between legal professionals and their clients from disclosure under compulsion of court or statute. This privilege allows clients to provide full disclosures to their lawyers without fear that the information will be used against them.
However, as you might recall from our previous post, patent attorneys aren’t lawyers. As such, it has been argued that communications between Australian patent attorneys and their clients might not enjoy the same legal professional privilege that exists between lawyers and their clients.
This would be a valid argument, but for the fact that the issue is addressed by a statutory attorney-client privilege in section 200 of the Patents Act 1990.
Under subsections 200(2) and (2A):
A communication, record or document made for the dominant purpose of a registered patent attorney providing intellectual property advice to a client is privileged in the same way and to the same extent as a communication, record or document made by a legal practitioner for the dominant purpose of providing legal advice to a client.
Subsection 200(2C) defines ‘intellectual property advice’ as advice in relation to patents, trade marks, designs, plant breeder’s rights and any related matters.
Essentially, all communications, records and documents made by patent attorneys in the course of providing professional advice to clients enjoy the same legal professional privilege as though the work was conducted by a solicitor or lawyer.
The takeaway
There’s no need to fear disclosing your confidential information to a registered Australian patent attorney. Patent attorneys will not steal your idea or invention.
Indeed, some patent attorneys might even take offence if you request that they sign a non-disclosure agreement — it would be the equivalent of requiring your lawyer or doctor to sign an NDA before you are willing to disclose your legal or medical issue!
