Glossary Term – Prime Innovation

What It Means

Legal privilege (often called legal professional privilege) is a rule of law that protects confidential communications between a client and their patent attorney when those communications are made for the purpose of obtaining legal advice, or for preparing for legal proceedings.

This means those communications are generally immune from compulsory disclosure to courts, regulators, or opposing parties in litigation. In practice, it allows inventors, founders, and companies to speak openly with their patent attorney about inventions, risks, and strategy without worrying that those discussions will later be used against them.

In New Zealand and Australia, communications with registered patent attorneys are recognised as privileged in many circumstances relating to intellectual property advice.

‍

Why It Matters

Having the protection of legal privilege:

Enables protected legal advice

Legal privilege ensures that communications made for the dominant purpose of obtaining legal advice cannot normally be compelled to be disclosed in court or regulatory investigations. Courts recognise that this protection exists so clients can speak openly with their legal advisers when seeking advice.

Reduces legal exposure during innovation

Technology development often raises difficult legal questions around patentability, infringement risk, and ownership of IP. Privileged communications allow these issues to be analysed with your patent attorney without those internal discussions becoming discoverable in disputes.

Preserves the integrity of legal advice

Legal privilege belongs to the client and may be lost (waived) if legal advice is shared with third parties. Forwarding advice from your patent attorney to external consultants, partners, or investors may waive the protection, meaning the communication could later be required to be disclosed in legal proceedings.

Real-world Example

A pharmaceutical company developing a patented medicine sought legal advice about infringement risks from generic competitors. Internal technical reports prepared for its attorneys were later requested during patent litigation. The court confirmed the documents were protected by legal privilege because their dominant purpose was obtaining legal advice (Bristol-Myers Squibb Australia Pty Ltd v Apotex Pty Ltd).

Pro Tip

Privilege protects communications seeking legal advice, but it does not automatically apply to ordinary business or technical discussions. When legal risk is involved, ensure your patent attorney is included so the advice can attract legal privilege.