Maintaining the Privilege of Patent Opinions in Alliances, Mergers and Acquisitions

D.J. Dykeman and D.W. Kopko (USA)


Intellectual Property Law, Patent Opinions, Attorney Client Privilege


During negotiations for a merger, acquisition or business alliance, one party to the transaction may need to disclose its patent opinions to the other party to facilitate the proposed transaction. Such disclosure places the disclosing party at risk of waiving the attorney-client privilege with respect to the patent opinions and any related information. The common interest doctrine provides an exception to waiver of the attorney-client privilege, allowing parties with common legal interests to share privileged patent opinions and other information without waiving the privilege. This article discusses the common interest doctrine, examines the legal landscape and offers practical measures a company can take to reduce the likelihood of waiving the attorney-client privilege.

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