Jason Hynes
President, The Intellectual Property Institute of Canada
Canada wants to lead on innovation, but outdated confidentiality rules leave sensitive IP advice exposed. Closing the privilege gap for patent and trademark agents is a practical reform that would protect Canadian companies, reduce costs, and strengthen global competitiveness.
Intellectual property is a core business asset. Answering questions like when and where to file a patent, how to manage a brand identity, and whether a new product infringes someone else’s IP rights are core to advancing Canadian innovation. If we can’t answer these questions, we cannot compete globally.
Patent and trademark agents are the undeniable specialized experts in these fields. For generations in Canada, these professionals have guided clients through the complicated and highly technical legal processes necessary to obtain patent rights, manage complicated trademark portfolios, and protect Canadians from infringers and bad actors around the world. Our innovation ecosystem has depended on this small and often unassuming army of IP experts for decades, operating under strict regulatory oversight and robust ethical obligations. However, their advice has always been subject to a glaring oversight.
The Privilege Issue
Everyone who has seen an episode of Law & Order understands that communications between a lawyer and their client are “privileged”, meaning that they are protected and kept confidential in virtually every circumstance. This is necessary so that clients get full and frank advice from their lawyers as they navigate complicated legal issues.
However, while patent and trademark agents routinely handle equally complex issues in intellectual property law, only some of their advice is protected. The rest of their advice, including around questions of infringement and validity, is left exposed to unwanted disclosure, even when this exposure directly conflicts with the laws of other countries.
This is not a niche issue. It is a structural weakness that puts Canadian companies at a competitive disadvantage.
Privilege Protects the Client, Not the Agent
At its core, privilege protects the client. When communications are privileged, companies can seek expert advice and speak candidly about their inventions, strategies, and products without fear that those discussions will later be exposed. Absent that protection, companies are forced to either keep secrets or adopt inefficient workarounds.
For example, lawyers might be added to conversations with patent agents solely because of privilege, even where the lawyer may have no knowledge of IP. Companies end up paying extra for specialized advice, resulting in higher costs, reduced access, and delays at the moments when it matters most.
Canada Is Behind Globally
This is not just a domestic issue. Many of Canada’s key trading partners—including the United Kingdom and Australia— recognize the critical importance of privileged communications between clients and their agents. In those countries, companies can work openly and be confident that their confidential discussions will be protected.
In Canada, that confidence is missing. Equally important, it puts Canada at a competitive disadvantage. Canadian companies have been hurt when communications protected abroad have been exposed at home. Multinational firms regularly choose to structure research and other sensitive IP work outside of Canada altogether, sidestepping the issue but hollowing high-value innovation activity and advisory work from the Canadian economy.
The Solution is Clear
The solution is clear: align the scope of protection surrounding agent communications with the critical work they are actually doing for their clients.
This would ensure that clients—not third parties or bad actors—control the confidentiality of their communications, would align Canada with international best practices, and would increase our global competitiveness. In short, it would strengthen the entire Canadian innovation system.
This is not a radical proposal. It is a targeted, practical reform that has been discussed for years and is well understood by policymakers and stakeholders alike.
Closing this gaping hole would send a clear signal that Canada takes innovation and intellectual property rights seriously—not just in rhetoric, but in the rules that underpin it. We implore the government to act.
