Dallas Court of Appeals Rules That Texas Does Not Recognize Patent Agent Privilege

On August 17, 2016, the Dallas Court of Appeals, in In re Silver, 05-16-00774-CV, 2016 WL 4386004 (Tex. App.—Dallas Aug. 17, 2016, no. pet. h.), found that the State of Texas does not recognize a patent-agent privilege, because “[n]o Texas statute or rule recognizes or adopts a patent-agent privilege.” The Silver decision is contrary to the Federal Circuit’s recent decision in In re Queen’s University at Kingston, 820 F.3d 1287, 1301 (Fed. Cir. 2016), recognizing a patent-agent privilege. The net result of these two decisions is that the patent-agent privilege exists and applies in federal court in patent-infringement cases, while it does not apply in Texas state court cases.