In In re Queen’s University at Kingston (App. No. 2015-0145), the court yesterday heard oral argument on whether to recognize the patent agent privilege. The oral argument is here.
Judges Lourie and O’Malley (if I’m recognizing their voices by memory correctly) seemed to believe that the court should recognize the privilege, but judge Reyna was skeptical of using mandamus to reach the issue.
This issue does need resolution by the court. The amount of money cost fighting over whether this privilege exists is money spent not addressing the merits, and whether this privilege exists comes up fairly frequently (and will more so in future cases, since patenting has become more of an international endeavor since the mid-1990s). I’ve written about this issue (and other patent agent ethics issues) here. The petitioner pretty much echoed my argument in the paper! Hopefully Judge O’Malley will quote me in her decision.
The USPTO also held some roundtables on the privilege (see here).