Christian Bekking is a 3L J.D. Candidate at Osgoode Hall Law School, enrolled in Professor David Vaver’s 2021-2022 Intellectual Property Law & Technology Intensive Program. As part of the course requirements, students were asked to write a blog on a topic of their choice.
On June 28, 2021, the College of Patent Agents and Trademark Agents (CPATA) was established and began operating to regulate patent and trademark agents. The new regulations, the College of Patent Agents and Trademark Agents Regulations, were implemented “to regulate patent agents and trademark agents in the public interest, in order to enhance the public’s ability to secure the rights provided for under the Patent Act and the Trademarks Act” as stated in the College of Patent Agents and Trademark Agents Act. According to the CPATA website, the college will set competency standards for licensees, require trainee agents to work with an experienced agent for two years, and require agents to pass a competency exam. The CPATA also sets and enforces ethical standards for agents and will be implementing a Code of Professional Conduct that states principles to guide all agents. Principles enumerated in the Code of Professional Conduct include a duty to be competent, a duty to preserve confidences and secrets, a duty to not act if there is a substantial risk of a conflict of interest, and a duty to be honest and candid when advising a client.
Many have praised the establishment of the CPATA, highlighting improvements in standardization and transparency. The CPATA, like other colleges, is tasked with protecting the public interest by ensuring members are held accountable. Establishing an appropriate complaint, inquiry, and discipline process is essential for fulfilling this mandate. The CPATA website includes both an informal resolution option, the Conduct Inquiry Form, as well as a complaint option. Both forms allow the public to easily submit information about the circumstances and agent involved in their inquiry or complaint to the CPATA. The Conduct Inquiry Form, as described by CPATA, can be “the best and most efficient way to address questions or concerns about an agent’s professional conduct … rather than by filing a complaint.” At the moment, the two forms look remarkably similar, but the Registrar’s Policy on Early Resolution of Agent Conduct Inquiries states that the “early resolution of conduct inquiries is focused on restoring relationships and trust ….” The policy lists the assessment options and follow-up actions the Registrar may invoke to resolve the matter. The Registrar will first assess if the inquiry warrants further action, and if necessary, work to support the licensee to rectify the situation in an appropriate manner. While the CPATA website does not currently include investigation and discipline policies, the informal inquiry process appears promising. The swift resolution of minor inquiries is key to allowing the Registrar to focus on issues that warrant significant attention and ensures that the public can be satisfied by a fast and efficient inquiry process for issues that they need resolved quickly. Consolidating the inquiry and complaint process to an easy one-stop-shop for the public will help foster trust in the profession.
Notwithstanding the improvements to standardization and transparency, the implementation of the CPATA regulations was not happily endorsed by all. Sections 5 and 9 of the regulations require that patent and trademark agents, respectively, reside in Canada. This could eliminate some American agents from filing in Canada and potentially, thanks to a reciprocity treaty between Canada and the US, lead to Canadian agents losing their right to file with the USPTO. Dual trained agents could potentially face the reality of needing to hire an American counterpart for filing with the USPTO, which could lead to increased costs that would ultimately be passed along to clients and delays that could frustrate the patent and trademark processes further. Improving the Canadian IP ecosystem may be the goal, but the residency requirement could cost financially desperate clients even more, and potentially cost Canadian firms business if clients decide to go directly to American agents. Balancing the improvement of the Canadian IP ecosystem with maintaining low costs for clients and business thriving for agents is difficult; the Government is faced with an unprecedented IP ecosystem problem. While the implementation of the CPATA will hopefully increase the standard of service that agents provide to clients and ensure that clients have a transparent recourse process when they feel that service does not meet the CPATA standard, the potential cost to clients and lawyers may ultimately prove to further exacerbate Canada’s IP retention problem.
