Patent Japan

Monday, July 24, 2006

Conflict of Interest in the Case of Patent Attorneys

On July 18, 2006, the Patent Attorneys’ Subcommittee of Industrial Structure Council held its 3rd meeting.

One of the things that drew my attention discussed in the meeting is the conflict of interest in the case of patent attorneys. Section 31(iii) of Patent Attorneys’ Law provides that patent attorneys may not represent the cases which are requested by an adversarial party of their clients, unless said clients permit them to do so.

The Subcommittee raises two situations that are disputable under this provision.
(i) In cases where a patent attorney X is representing both applicants A and B, if B files an appeal for invalidation against A’s patent and X accepts A’s representation, isn’t it too harsh to say that X is no longer allowed to represent any of B’s patent prosecutions without A’s consent?
(ii) In case where A and B are engaged in the same technical field or the same market, is it justifiable to permit X to represent both A and B as far as only ex parte proceedings are involved.

It appears that these problems stem from the fact that the Law of patent attorneys, which in most of the cases deal with ex parte proceedings against the Patent Office, was written based on the Law of lawyers, which basically act under adversary system.

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