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College of Patent and Trademark Agents need not regulate lawyers

We need to recognize the differences in existing regulation for lawyer agents and non-lawyer agents.

Lady justice with law books on faded background

A board of directors is only as good or as effective as the people sitting on it. When it comes to a board overseeing the creation of a new entity, it’s even more crucial that the members have the skills and competencies necessary to the task.

That was the message from the CBA’s Intellectual Property Section to the Minister of Innovation, Science and Economic Development Canada, who recently put out a call for applicants to sit on the transitional board of directors of the new College of Patent and Trademark Agents, “to lay the foundation for the College and ensure that a robust, public interest-minded body oversees intellectual property agents.”

“We urge the government to ensure that the transitional board (and subsequent boards) includes the deep expertise in professional regulation and ethics necessary to fully appreciate the implications for lawyer agents of potential conflicts between overlapping regulatory regimes and to ensure that the College acts in the public interest,” the Section said in a letter to Navdeep Bains.

The transitional board will have to have a full understanding of the difference in existing regulation for lawyer agents and non-lawyer agents, including their scope of practice, and will have to develop rules and regulations to address the inconsistency between those regimes, the Section writes. For example, the board will need a “substantive understanding” of the distinction between solicitor-client privilege and the statutory privilege granted to IP agents.

While the CBA has supported the development of a federal regulatory body for patent and trademark agents, it has argued that it is not necessary for the College to regulate lawyer agents. “The government having chosen otherwise, clarity on the appropriate rules of the regulated professionals and their respective accountabilities will be critical,” the Section says.