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Heather Repicky Weighs In on Texas Appellate Ruling on Patent Agent Privilege in Law360

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Heather B. Repicky, a partner in Nutter’s Litigation Department and a member of the firm’s Intellectual Property Litigation group, commented on a Texas appellate ruling on patent agent privilege in Law360. The ruling, from a panel of Dallas’ Fifth Circuit Court of Appeals, is believed to be the first state court holding on patent agent privilege since the Federal Circuit’s Queen’s University decision in March, which protects discovery communication between registered patent agents and their clients when the communications are tied to patent prosecution. In the article, “Texas Roils Recently Stilled Waters of Patent Agent Privilege,” Heather notes that before the Queen’s University decision, forum-shopping was an issue in matters that involved a potential problem with a patent agent.

She points out that before the Federal Circuit weighed in, federal district courts across the country were split on whether patent agent communications are privileged, and access to those communications was part of the discussion about where a plaintiff should file. "You're going to have that same kind of thing here, at the state level. If you have a breach of license case, or you're involved in a state contract claim, you're obviously going to look and say, 'Can I bring this in Texas?' Especially if it involves a patent agent," Heather said.

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