By-laws of the College of Patent Agents and Trademark Agents: SOR/2023-73
Canada Gazette, Part II, Volume 157, Number 9
Registration
SOR/2023-73 April 12, 2023
COLLEGE OF PATENT AGENTS AND TRADEMARK AGENTS ACT
The Board of Directors of the College of Patent Agents and Trademark Agents makes the annexed By-laws of the College of Patent Agents and Trademark Agents under
- (a) section 75footnote a, subsection 76(2)footnote b and sections 87footnote c and 88footnote c of the College of Patent Agents and Trademark Agents Act footnote d; and
- (b) section 18 of the College of Patent Agents and Trademark Agents Regulations footnote e.
Ottawa, April 4, 2023
Thomas G. Conway
Chairperson, Board of Directors
College of Patent Agents and Trademark Agents
By-laws of the College of Patent Agents and Trademark Agents
PART 1
Interpretation
Definitions
1 The following definitions apply in these By-laws.
- Act
- means the College of Patent Agents and Trademark Agents Act. (Loi)
- CEO
- means the individual appointed by the Board under section 23 of the Act. (premier dirigeant)
- CIPO
- means the Canadian Intellectual Property Office and includes the Patent Office and the Office of the Registrar of Trademarks. (OPIC)
- class 1 licence
- means a patent agent licence issued under subsection 26(1) of the Act or a trademark agent licence issued under subsection 29(1) of the Act that is not a class 2 or class 4 licence. (permis de catégorie 1)
- class 2 licence
- means a patent agent licence issued under subsection 26(1) of the Act or a trademark agent licence issued under subsection 29(1) of the Act that is subject to the restriction set out in section 47. (permis de catégorie 2)
- class 3 licence
- means a patent agent in training licence issued under subsection 26(2) of the Act or a trademark agent in training licence issued under subsection 29(2) of the Act. (permis de catégorie 3)
- class 4 licence
- means a patent agent licence issued under subsection 26(1) of the Act or a trademark agent licence issued under subsection 29(1) of the Act, to an individual who is not practising as a patent agent or a trademark agent and who is not providing any services in that capacity to the public or in connection with their employment. (permis de catégorie 4)
- Code
- means the Code of Professional Conduct for Licensees established under subsection 33(1) of the Act. (Code)
- foreign practitioner
- means an individual who is described in subsection 19(1) or 20(1) of the Regulations. (praticien étranger)
- professional regulatory body
- means a body that has a statutory duty to regulate a profession, other than under the Act. (organisme de réglementation professionnelle)
- Register
- means the Register of Patent Agents, referred to in section 28 of the Act, or the Register of Trademark Agents, referred to in section 31 of the Act. (registre)
- Regulations
- means the College of Patent Agents and Trademark Agents Regulations. (Règlement)
- supervisor
- means an individual who is authorized under section 64 to act as the supervisor of a class 3 licensee. (superviseur)
Definition of incompetence
2 (1) For the purposes of the Act, incompetence means the failure of a licensee to apply relevant knowledge, skills or judgment in a manner consistent with the standards of competence set out in the Code while practising as a patent agent or trademark agent.
Definition of professional misconduct
(2) For the purposes of the Act, professional misconduct means conduct by a licensee that is inconsistent with the standards of professional conduct set out in the Code and that would reasonably be regarded as unprofessional or that may discredit the profession and includes any of the following:
- (a) contravening the Act, the Regulations, these By-laws or the Code;
- (b) exhibiting behaviour while practising as a patent agent or trademark agent that tends to bring discredit to the profession or undermines public confidence in it;
- (c) being convicted of or pleading guilty to an offence described in paragraph 73(d); and
- (d) being found by a professional regulatory body to have committed professional misconduct or to be incompetent, incapacitated or unfit to practise within the meaning of the statute under which the body made its finding.
PART 2
Organization of the College
Fiscal Year
Fiscal year
3 The fiscal year of the College begins on January 1 and ends on December 31 of the same calendar year.
Annual General Meeting
Notice of meeting
4 At least 60 days before the day on which the annual general meeting is to take place, the CEO must give public notice of the meeting that sets out the date of the meeting, the means of attendance and, if applicable, the location.
Agenda
5 The agenda for an annual general meeting must include the following items:
- (a) the CEO’s presentation of the College’s annual report and audited financial statements;
- (b) the Chairperson’s address to the meeting;
- (c) questions from the licensees to the Board; and
- (d) any additional matter that the Board adds to the agenda.
Board of Directors
Duties of Board
6 (1) The Board has the following duties on behalf of the College:
- (a) on an annual basis, appoint an independent auditor to audit the accounts of the College and approve the audited financial statements;
- (b) monitor the College’s financial performance;
- (c) designate any bank listed in Schedule I to the Bank Act as a bank for the College;
- (d) ensure multi-year financial planning by approving the College’s budgets in advance of each fiscal year;
- (e) establish and publish an investment policy and appoint an investment dealer, on the recommendation of the CEO;
- (f) approve terms of reference and a skills matrix for committees of the College;
- (g) in accordance with the Board’s policies, consult with any working groups that the Board establishes to assist with its duties and functions; and
- (h) ensure that the College’s and CEO’s actions are compliant with all legal requirements.
Duties of Board — CEO
(2) The Board has the following duties with respect to the CEO:
- (a) provide direction to the work of the CEO by establishing performance expectations, providing regular performance reviews and undertaking succession planning;
- (b) develop standards, principles and regulatory objectives;
- (c) establish working groups to assist the CEO in carrying out the CEO’s work;
- (d) monitor the performance of the CEO and of the working groups; and
- (e) oversee the CEO’s effectiveness with respect to engagement with members and with the public.
Remuneration
7 (1) The College must pay to each director the remuneration set out in Schedule 2.
Reimbursement of expenses
(2) Every director is entitled to the reimbursement of reasonable expenses that they incur in performing their duties and functions as directors.
Term of office of elected directors
8 The term of office of each elected director begins at the conclusion of the first annual general meeting following their election and ends on the earlier of
- (a) the day after the third anniversary of the day on which the term began, and
- (b) the conclusion of the fourth annual general meeting following their election.
Election of Directors
Election process to be published
9 The Board must publish the process for the election of directors on the College’s website.
Distribution of elected directors
10 The number of directors elected to the Board is to be divided evenly between patent agents and trademark agents.
Vacancies
11 Each year, the CEO determines if any elected director positions will be vacant at the conclusion of the next annual general meeting. If any positions will be vacant, an election must be held before that meeting to elect the appropriate number of patent agents and trademark agents to satisfy the requirements of section 10.
Election Commissioner
12 (1) The Board must, on the recommendation of the CEO, appoint an Election Commissioner to address any issues that arise concerning the election process, including to rule on
- (a) any dispute concerning the ineligibility of a nominee; and
- (b) any other dispute that arises during the election period or regarding the election results.
No review by Board
(2) A ruling of the Election Commissioner is not reviewable by the Board.
Ineligibility criteria
13 For the purposes of subparagraphs 14(f)(ii) and 17(h)(iii) of the Act, an individual is not eligible to be an elected director if
- (a) in the five years immediately before the day of the election, they have been found to have committed professional misconduct or to be incompetent by the Discipline Committee;
- (b) in the five years immediately before the day of the election, they have been found by a professional regulatory body to have committed professional misconduct or to be incompetent within the meaning of the statute under which the body made its finding;
- (c) they are the subject of an action taken by the Investigations Committee under subsection 37.1(1) of the Act;
- (d) they are the subject of an application to the Discipline Committee by the Investigations Committee under subsection 49(1) of the Act;
- (e) they have already served as a director for a period of six years and, on the date of the election, less than two years have elapsed since the end of that period;
- (f) they are employed by a department, as defined in section 2 of the Financial Administration Act;
- (g) they have not provided the CEO with a declaration regarding conflicts of interest; or
- (h) they have not attended an orientation for prospective candidates for election.
Conflict of interest
14 An individual must not be appointed or elected or continue as a director if doing so would place them in a conflict of interest.
Confirmation of nominations
15 (1) The CEO must confirm the eligibility of every nominee to become a candidate for election as a director in accordance with the criteria set out in section 14 of the Act and sections 13 and 14 of these By-laws.
Disputes about eligibility
(2) The CEO must refer any dispute about the eligibility of a nominee to the Election Commissioner, who will make a decision regarding the nominee’s eligibility on the basis of the CEO’s reasons and a submission from the nominee.
Equal number of eligible nominees and positions
(3) If, at the end of the nominations period, the number of eligible nominees for election is less than or equal to the number of vacant director positions, the CEO is to declare those nominees elected and notify the nominees and the members accordingly.
Notice of withdrawal by candidate
16 A candidate who withdraws from an election must give notice to the CEO in writing.
Voting
17 (1) A licensee whose licence is not suspended is eligible to vote in an election for directors.
Electronic voting
(2) Voting during an election of directors is to be done by electronic means.
Disputes concerning election results
18 (1) If a candidate asserts that there are reasonable grounds to dispute the validity of the election results, the candidate may file a notice of dispute with the Election Commissioner that must include the procedural defect being alleged.
Time limit for filing
(2) The notice of dispute must be filed within five days after the day on which the election results are published on the College’s website.
Inquiry by Election Commissioner
(3) The Election Commissioner must hold an inquiry if they find that the notice of dispute demonstrates reasonable grounds to doubt the validity of the election process.
Report and recommendations
(4) The Election Commissioner must prepare a written report of their findings and recommendations and submit it to the Board.
Declaration by Board
19 (1) The Board may, after reviewing the Election Commissioner’s report and recommendations, take either of the following actions:
- (a) declare the election result to be valid; or
- (b) declare the election result to be invalid and
- (i) declare another candidate to have been elected, or
- (ii) direct that another election be held.
Minor procedural defect
(2) An election result is not invalid based solely on a minor procedural defect.
Removal — elected directors
20 (1) The directors may, by resolution, remove an elected director from office for cause if
- (a) a motion is made to remove the director and at least two-thirds of the directors in attendance at a meeting vote in favour of the removal; and
- (b) notice of the intention to make the motion is provided to the Board and to the director at least two weeks in advance of the vote on the motion.
Removal — appointed directors
(2) The directors may, by resolution, request that the Minister remove an appointed director from office for cause if
- (a) a motion is made to remove the director and at least two-thirds of the directors in attendance at a meeting vote in favour of the removal; and
- (b) notice of the intention to make the motion is provided to the Board and to the director at least two weeks in advance of the vote on the motion.
Ineligibility due to absences
21 An elected director who, without a valid reason, is absent from two consecutive Board meetings has met the ineligibility criteria for the purpose of subparagraph 17(h)(iii) of the Act.
Board Meetings
Frequency of meetings
22 (1) The Board is to meet at least four times each year. The Board sets the location of the meeting or the electronic means to be used in order to hold the meeting.
Electronic means
(2) A Board meeting held by electronic means must be conducted by any means that permits all persons who are participating in the meeting to communicate with each other simultaneously.
Quorum
23 The quorum for a Board meeting is five directors.
Rules of order
24 The Board must adopt rules of order for the conduct of its meetings.
Notice of meeting
25 (1) At least seven days before a Board meeting, the CEO must publish on the College’s website
- (a) the agenda and any meeting materials that are not confidential; and
- (b) any information that enables the public to participate in the meeting, including how to access the meeting if it is to be held by electronic means.
Failure to publish notice
(2) Failure of the CEO to publish the notice does not invalidate the meeting.
Agenda
26 The agenda for a Board meeting must relate only to the Board’s work.
Simple majority
27 Subject to sections 20 and 34, a motion or resolution tabled at a Board meeting is decided by a majority vote of the directors who are in attendance at the meeting.
Adjournments
28 The Chairperson may, with the consent of a majority of directors who are in attendance at a meeting, adjourn the meeting to a fixed time and place.
In camera meetings
29 (1) The Board may exclude the public from a Board meeting to discuss any matter if the Board is of the opinion that the harm of public disclosure of the matter under consideration outweighs the benefits of open discussion and attendance by the public.
In camera meetings — exclusion of CEO
(2) The Board may exclude the CEO from an in camera meeting
- (a) to consider the CEO’s appointment, reappointment, dismissal, performance or terms of office; or
- (b) to provide an opportunity for the directors to discuss matters relevant only to directors.
Special Board meetings — notice
30 (1) The Chairperson, or any three directors, may call a special Board meeting to be held by electronic means by providing at least 24 hours’ written notice to the CEO.
Receipt of notice
(2) As soon as feasible after receiving the notice, the CEO must
- (a) advise the directors and the public of the reason for the meeting, the date and time when it will be held, and the electronic means for participating in the meeting; and
- (b) publish on the College’s website the agenda and any meeting materials that are not confidential.
Failure to publish
(3) Failure of the CEO to publish the notice does not invalidate the meeting.
Officers
Chairperson and CEO
31 (1) The Chairperson and the CEO are the officers of the College.
CEO
(2) The CEO serves ex officio and does not have a vote at Board meetings.
Duties of Chairperson
32 The Chairperson has the following duties:
- (a) carry out the College’s business;
- (b) act as the spokesperson for the Board; and
- (c) participate in the Board’s decision-making.
Election of Chairperson
33 (1) The Board is to elect a Chairperson from among the directors, for a term of two years.
Vacancy — Chairperson
(2) If the office of Chairperson becomes vacant before the end of the two-year term, the Board is to elect a replacement Chairperson, to hold office until the end of the original term, at which time an election to fill the position must be held.
Removal of Chairperson
34 The directors may, by resolution, remove the Chairperson from office if
- (a) a motion is made to remove the Chairperson and at least two-thirds of the directors in attendance at a meeting vote in favour of the removal; and
- (b) notice of the intention to make the motion is provided to the Board and the Chairperson at least two weeks in advance of the vote on the motion.
Vice-chairperson
35 (1) The Board may elect a Vice-chairperson from among the directors, on a temporary basis for a term to be specified by the Chairperson at the time of the election.
Duties of Vice-chairperson
(2) A Vice-chairperson has the following duties:
- (a) perform the duties of the Chairperson when the Chairperson is absent or otherwise unavailable to act; and
- (b) carry out any other duties and responsibilities that are assigned by the Board.
Duties of CEO
36 The CEO has the following duties:
- (a) provide leadership, support and strategic advice to the Board to assist the Board in meeting its obligations and objectives;
- (b) manage, coordinate and maintain the College’s operations, administration, finances and organization;
- (c) develop operational and management policies for the College;
- (d) counsel and assist the Board and committees in carrying out their assigned functions;
- (e) assist the Board in complying with all relevant legislation and policies;
- (f) administer the election process for the election of directors, including
- (i) each year, determining whether an election is needed,
- (ii) confirming the eligibility of nominees to become candidates for election, and
- (iii) publishing the dates of elections on the College’s website;
- (g) engage, direct and supervise employees and contractors of the College and develop succession plans for College staff and contracted functions;
- (h) maintain accurate minutes of Board meetings and have them approved by the Board and maintained by the College;
- (i) act as the spokesperson for the College;
- (j) when the College submits its annual report to the Minister, make public the amounts paid to directors and committee members as remuneration and expense reimbursements; and
- (k) perform all other duties and functions that are assigned by the Board.
Deputy CEO
37 (1) The Board may appoint a Deputy CEO, who serves as acting CEO during the CEO’s absence.
Vacancy of both CEO and Deputy CEO
(2) If the office of CEO becomes vacant and there is no Deputy CEO, the Board must appoint an individual to serve as acting CEO until a new CEO is appointed.
Registrar
Duties of Registrar
38 The Registrar has the following duties:
- (a) establish regulatory policies, either on their own initiative or at the request of the Board or a committee, and publish them on the College’s website; and
- (b) perform all other duties and functions that are assigned by the Board or under the Act, the Regulations or these By-laws.
Deputy Registrar
39 (1) The Board must appoint a Deputy Registrar, who serves as acting Registrar during the Registrar’s absence.
Vacancy of both Registrar and Deputy Registrar
(2) If the office of Registrar becomes vacant and there is no Deputy Registrar, the Board must appoint an individual to serve as acting Registrar until a new Registrar is appointed.
Committees
Committees created
40 The following committees are created:
- (a) the Registration Committee;
- (b) the Governance Committee; and
- (c) the Audit and Risk Committee.
Registration Committee
41 The Registration Committee is created to, among other things,
- (a) set the standards for the qualifying examinations and the evaluation of licensees; and
- (b) review the Registrar’s licensing decisions when a request is made under section 66.
Governance Committee
42 The Governance Committee examines governance practices, including Board practices and performance, and makes recommendations to the Board.
Audit and Risk Committee
43 The Audit and Risk Committee assists the Board in fulfilling its fiduciary obligations or obligations of loyalty and good faith and its oversight responsibilities relating to financial planning and reporting, the audit process, the system of corporate controls and risk management and, when required, makes recommendations to the Board.
Remuneration of committee members
44 (1) The College must pay to each member of a committee the remuneration set out in Schedule 2.
Reimbursement of expenses
(2) Every committee member is entitled to reimbursement of reasonable expenses that they incur while performing their duties and functions as committee members.
PART 3
Licensing
Applications
Class 1 Licence
Application
45 (1) An applicant for a class 1 licence must submit an application to the Registrar that contains the following information:
- (a) their name, address, telephone number and email address;
- (b) proof that they are resident in Canada;
- (c) their complete professional employment history;
- (d) proof that they successfully completed the applicable agent training program and the qualifying examinations;
- (e) proof that, as of the effective date of the licence, they will be insured against professional liability, as required by subsection 34(1) of the Act, or proof that they are exempt from that requirement and the reason for the exemption;
- (f) any information necessary to assist the Registrar in determining whether the applicant is of good character and fit to practise;
- (g) a declaration that the applicant will, when licensed, practise with integrity, uphold the independence of the profession and comply with the Code; and
- (h) any other information that the Registrar requires to determine whether the applicant meets the requirements for the licence.
Timing and application fee
(2) The application must be submitted to the Registrar within six months after the day on which the College advises the applicant of their successful completion of the qualifying examinations and be accompanied by the fee set out in item 1 of Schedule 1, payable to the College.
Licence fee
(3) Before the Registrar issues the licence, the licensee must pay to the College the fee set out in item 10 of Schedule 1, prorated to the number of months remaining in the year following the month in which the licence is issued.
Class 2 Licence
Application
46 (1) A class 1 licensee who wishes to obtain a class 2 licence must submit an application to the Registrar that contains the following information:
- (a) their name, address, telephone number and email address;
- (b) their complete professional employment history;
- (c) proof that, as of the effective date of the licence, they will be insured against professional liability, as required by subsection 34(1) of the Act, or proof that they are exempt from that requirement and the reason for the exemption; and
- (d) confirmation of the following:
- (i) that they have completed all client matters or made arrangements to the satisfaction of their clients to have the clients’ files returned to them or transferred to one or more licensees whose class of licence permits them to proceed with the file or files being transferred,
- (ii) that they have assigned any matters in progress at CIPO to one or more licensees described in subparagraph (i) and advised the appropriate Office of CIPO in writing of the name of the successor licensee or licensees, and
- (iii) the location of any of their files that are not returned to the clients or transferred as described in subparagraph (i).
Application fee
(2) The application must be accompanied by the fee set out in item 2 of Schedule 1, payable to the College.
Verification of information
(3) The Registrar may seek independent verification from a successor licensee of the information submitted by a licensee under subparagraph (1)(d)(ii).
Licence fee
(4) Before the Registrar issues the licence, the licensee must pay to the College the fee set out in item 12 of Schedule 1, prorated to the number of months remaining in the year following the month in which the licence is issued.
Restriction on class 2 licences
47 A class 2 licensee is not entitled to represent persons in the presentation and prosecution of applications for patents or for the registration of trademarks or in other business before CIPO.
Class 3 Licence
Application
48 (1) An applicant for a class 3 licence must submit an application to the Registrar that contains the following information:
- (a) their name, address, telephone number and email address;
- (b) proof that they are resident in Canada;
- (c) their complete professional employment history;
- (d) proof that, as of the effective date of the licence, they will be insured against professional liability, as required by subsection 34(1) of the Act, or proof that they are exempt from that requirement and the reason for the exemption;
- (e) a criminal record check;
- (f) records of any disciplinary sanction by an employer, academic institution, professional regulatory body, or any other body or association of which the applicant is or was a member;
- (g) records of any bankruptcy or insolvency;
- (h) a declaration that the applicant
- (i) has not been served with an application for bankruptcy, made an assignment of property for the benefit of creditors or presented a proposal in bankruptcy to creditors under the Bankruptcy and Insolvency Act,
- (ii) has not had a judgment entered against them by a court,
- (iii) is not personally subject to an order for costs,
- (iv) has not been charged with, pleaded guilty to or been found guilty of any offence under the Criminal Code, the Controlled Drugs and Substances Act, the Income Tax Act, the Excise Tax Act, a provincial act respecting securities, employment standards or official languages or any other provincial act that creates an offence that implicates an individual’s integrity, and
- (v) has not had their professional licence restricted or suspended by a professional regulatory body, or been found by a professional regulatory body to have committed professional misconduct or to be incompetent within the meaning of the statute under which the body would make its finding;
- (i) a list of any degrees, diplomas and certificates that they have been awarded in or outside Canada and the names of the educational institutions that awarded them;
- (j) the name of every professional regulatory body under which the applicant is licensed to practise in or outside Canada;
- (k) evidence that the applicant is proficient in one or both of the official languages;
- (l) a specimen signature, a current photograph and any other information necessary to confirm their identity;
- (m) a copy of a training agreement executed by the applicant and their supervisor; and
- (n) any other information that the Registrar requires to determine whether the applicant meets the requirements for the licence.
Application fee
(2) The application must be accompanied by the fee set out in item 3 of Schedule 1, payable to the College.
Licence fee
(3) Before the Registrar issues the licence, the licensee must pay to the College the fee set out in item 14 of Schedule 1, prorated to the number of months remaining in the year following the month in which the licence is issued.
Conditions on licence
49 The following conditions apply to a class 3 licence:
- (a) the licensee must comply with the terms of the training agreement; and
- (b) the licensee must not, without the supervision of a class 1 licensee and without a training agreement in effect, represent any person in the presentation or prosecution of an application for a patent or for the registration of a trademark or in any other business before CIPO.
Class 4 Licence
Application
50 (1) A class 1 licensee or class 2 licensee who wishes to obtain a class 4 licence must submit an application to the Registrar that contains the following information:
- (a) their name, address, telephone number and email address;
- (b) their complete professional employment history;
- (c) a declaration that they are not practising as a patent agent or trademark agent; and
- (d) confirmation of the following:
- (i) that they have completed all client matters or made arrangements to the satisfaction of their clients to have the clients’ files returned to them or transferred to one or more licensees whose class of licence permits them to proceed with the file or files being transferred,
- (ii) that they have assigned to one or more licensees described in subparagraph (i) any matters in progress at CIPO and advised the appropriate Office of CIPO in writing of the name of the successor licensee or licensees, and
- (iii) the location of any of their files that are not returned to the clients or transferred as described in subparagraph (i).
Application fee
(2) The application must be accompanied by the fee set out in item 4 of Schedule 1, payable to the College.
Verification of information
(3) The Registrar may seek independent verification from a successor licensee of the information submitted by a licensee under subparagraph (1)(d)(ii).
Licence fee
(4) Before the Registrar issues the licence, the licensee must pay to the College the fee set out in item 16 of Schedule 1, prorated to the number of months remaining in the year following the month in which the licence is issued.
Change of Class of Licence
Application
51 (1) Subject to sections 46 and 50, a class 1 licensee, class 2 licensee or class 4 licensee who wishes to change the class of their licence must submit an application to the Registrar that contains the following information:
- (a) their name, address, telephone number and email address;
- (b) the class of licence for which they are applying;
- (c) their complete professional employment history;
- (d) in the case of a change to a class 1 licence or class 2 licence, proof that, as of the effective date of the new licence, they will be insured against professional liability, as required by subsection 34(1) of the Act, or proof of exemption from that requirement and the reason for the exemption; and
- (e) proof that they have complied with any continuing professional development requirements of the new class of licence.
Return to practice after three years
(2) A class 4 licensee who has held a class 4 licence for three years or more and who wishes to obtain either a class 1 licence or class 2 licence must submit an application to the Registrar that contains, in addition to the information required under subsection (1), the following information:
- (a) any information necessary to assist the Registrar in determining whether the applicant is of good character and fit to practise;
- (b) a declaration that the applicant will practise with integrity, uphold the independence of their profession and comply with the Code;
- (c) proof that the applicant has completed any remedial training or examinations specified by the Registrar; and
- (d) any other information that the Registrar requires to determine whether the applicant meets the requirements of the new class of licence.
Application fee
(3) The application must be accompanied by the applicable fee set out in items 5 to 7 of Schedule 1, payable to the College.
Qualifying Examinations
Process
52 The Registrar must publish on the College’s website information about the qualifying examinations that includes
- (a) the dates of the examinations;
- (b) the registration process;
- (c) the examination fee set out in item 8 of Schedule 1;
- (d) the process for administering examinations;
- (e) the method of communication of the examination results; and
- (f) a statement that it is possible to request a re-marking of the examination.
Examination advisory group
53 The Registrar may appoint an advisory group composed of any combination of class 1 licensees, class 2 licensees and representatives of CIPO to assist the Registrar in preparing, administering and marking the qualifying examinations.
Training program
54 A class 3 licensee may write the qualifying examinations after they have completed a training program approved by the Registrar.
Qualifying examinations
55 (1) Subject to subsection (2), a class 3 licensee must write the qualifying examinations at the first sitting of the examinations that follows the completion of their training program.
Request for delayed examinations
(2) If a licensee is not able to write the examinations as required by subsection (1) for a reason beyond their control, the Registrar may, on request of the licensee, allow the licensee to write the examinations at the next following sitting.
Examination fees
(3) The licensee must pay to the College the examination fee set out in item 8 of Schedule 1 to write the qualifying examinations or any part of the examinations.
Re-marking examinations
56 (1) A licensee who receives less than a passing mark on the qualifying examinations may, on payment to the College of the fee set out in item 9 of Schedule 1, request that their examinations or any part of their examinations be re-marked.
Non-application
(2) Subsection (1) does not apply if the re-marking will not materially affect the outcome and result in a passing mark.
Reimbursement of fee
(3) If the re-marking of a licensee’s examinations results in their receiving a passing mark, the fee for re-marking paid under subsection (1) must be reimbursed to the licensee.
No review
(4) Re-marking results are not reviewable by the Registration Committee under section 66.
Failure in examinations
57 (1) A licensee who does not initially receive a passing mark on the qualifying examinations may write them only one additional time, and must do so at the first sitting of the examinations that takes place after they receive their examination results or the results of any re-marking under subsection 56(1).
Request for delayed examinations
(2) If a licensee is not able to write the examinations as required by subsection (1) for a reason beyond their control, the Registrar may, on request of the licensee, allow the licensee to write the examinations at the next following sitting.
Undertaking
58 A licensee referred to in subsection 57(1) must give an undertaking in writing to the Registrar that they agree not to practise until they have entered into a new training agreement with the same or another supervisor.
Remedial training
59 (1) If a class 3 licensee does not receive a passing mark on the qualifying examinations within two years after the day on which they complete the training program, they must provide the Registrar with a remedial training and education plan prepared in conjunction with their supervisor or, if they have no supervisor, in accordance with any conditions that the Registrar may impose on their licence.
Re-examination
(2) On completion of the remedial training and education plan, the licensee may, despite subsection 57(1), request to rewrite the qualifying examinations or any part of the examinations, on payment to the College of the fee set out in item 8 of Schedule 1.
Waiver or modification of requirements
60 If an applicant for a licence or a licensee is unable to meet any requirement for licensing or training for reasons beyond their control, the Registrar may waive or modify that requirement on request by the applicant or licensee.
Registrar may impose conditions
61 The Registrar may impose either or both of the following conditions on a licence at the time of its issuance or reinstatement if it is in the public interest to do so:
- (a) that the licensee complete any remedial training and examinations specified by the Registrar; and
- (b) that the licensee work under the supervision of or in conjunction with a class 1 licensee approved by the Registrar, for a specified period.
Effective date
62 The Registrar must set the effective date of a licence when it is issued or reinstated.
Accommodation for applicants or licensees
63 The Registrar must reasonably accommodate an applicant for a licence or a licensee if they provide the Registrar with satisfactory information that demonstrates the need for an accommodation in order to provide a fair opportunity for the applicant or licensee to successfully complete any of the applicable training, qualifying examinations or other licensing requirements.
Supervisors
Eligibility
64 (1) The following individuals are eligible to act as the supervisor of a class 3 licensee:
- (a) a class 1 licensee;
- (b) subject to subsection (3), a class 2 licensee;
- (c) a representative of CIPO.
Authorization
(2) The Registrar must authorize an eligible individual set out in subsection (1) to act as the supervisor of a class 3 licensee if they apply to the Registrar and
- (a) have completed the supervisor training program;
- (b) demonstrate in their application how they will provide training that focuses on ethical and competent practices;
- (c) are not the subject of an investigation under section 37 of the Act;
- (d) are not the subject of an application to the Discipline Committee by the Investigations Committee under subsection 49(1) of the Act; and
- (e) do not have a suspended licence.
Additional requirement — class 2 licensees
(3) In addition to meeting the requirements of subsection (2), a class 2 licensee must provide the Registrar with a training plan that demonstrates how the class 3 licensee under their supervision will receive training in the areas in which the class 2 licensee’s practice is restricted under section 47.
Remedial supervisor training
(4) A supervisor must retake any part or all of the supervisor training program, as specified by the Registrar, if there are reasonable grounds to believe that the supervisor requires remedial training in some or all aspects of being a supervisor.
Revocation of authorization
65 The Registrar must revoke a supervisor’s authorization if
- (a) the supervisor no longer meets any of the criteria set out in paragraphs 64(2)(b) to (e);
- (b) the supervisor does not comply with subsection 64(4) when required; or
- (c) the supervisor’s licence is suspended or revoked.
Review of Registrar’s Decisions with Respect to Licensing
Registrar’s decisions reviewable
66 An applicant for a licence or a licensee may request that the Registration Committee review any licensing decision of the Registrar with respect to their application or licence, as applicable.
Registration Committee
67 (1) On receipt of a request made under section 66, the Registration Committee must consider the request and
- (a) affirm or vary the Registrar’s decision or dismiss the request; or
- (b) hold a hearing on the merits of the request and, at the conclusion of the hearing, affirm or vary the Registrar’s decision or dismiss the request.
Additional information
(2) The Registration Committee may request that the Registrar obtain additional information from the applicant or licensee and provide it to the Committee, at any time during the Committee’s consideration of the request, including during any hearing of the request.
Written reasons
(3) The Registration Committee must provide reasons to the applicant or licensee in writing for each action it takes under subsection (1).
When Registrar’s decision varied
(4) If the Registration Committee varies the Registrar’s decision, the Registrar must give effect to the varied decision without delay and notify the applicant or licensee and, if applicable, their supervisor.
Decision final
(5) The Registration Committee’s decision is final and not reviewable by the Board.
PART 4
Obligations of Licensees
Obligations
Requirements
68 A licensee must meet the following requirements in order to maintain the validity of their licence:
- (a) have the necessary skills and competencies to practise the profession; and
- (b) be of good character and remain fit to practise.
Professional liability insurance
69 (1) The professional liability insurance required by subsection 34(1) of the Act must meet the following requirements:
- (a) be issued by a company licensed in Canada;
- (b) cover claims made in and outside Canada;
- (c) indemnify the licensee for any civil liability that arises from their acting as either a patent agent or a trademark agent; and
- (d) have coverage limits of no less than $1 million per claim and $2 million aggregate per year.
Exemptions
(2) The following licensees are exempt from the requirement in subsection 34(1) of the Act to be insured against professional liability:
- (a) a class 3 licensee who has neither a supervisor nor a training agreement in effect and who has given an undertaking under section 58;
- (b) a class 4 licensee;
- (c) any licensee who is employed by an employer that carries on business in Canada and who provides patent agent or trademark agent services solely to their employer and not to the public; and
- (d) until December 31, 2023, a class 2 licensee.
Annual requirements
70 On or before March 31 of each year, every licensee must
- (a) pay to the College the applicable fee set out in items 10 to 16 of Schedule 1;
- (b) except for a class 4 licensee, file the annual licensee report with the Registrar;
- (c) if they are a class 3 licensee, provide the Registrar with the name of their supervisor; and
- (d) if they are a class 4 licensee, provide the Registrar with their contact information and a declaration that they
- (i) continue to be resident in Canada,
- (ii) have complied with the requirements of section 73, and
- (iii) are not practising as a patent agent or trademark agent.
Annual report
71 The annual licensee report must contain all the following information in respect of the licensee:
- (a) confirmation of the mailing and civic addresses of each location of their business or practice, their email address and telephone number, and, if applicable, the name of their firm;
- (b) the areas of their practice and the approximate percentage by time or billings associated with each area;
- (c) the name of any professional regulatory body under which they are licensed;
- (d) confirmation of their professional liability insurance and the name of the insurer, or confirmation that they are exempt from the requirement to be so insured and the reason for the exemption;
- (e) the official language or languages in which they are able to practise as a patent agent or trademark agent;
- (f) their continuing professional development plan for the next year and a declaration that they have completed the previous year’s plan;
- (g) a declaration that they continue to be resident in Canada;
- (h) a declaration that they have complied with the requirements of section 73; and
- (i) any other information or documents that the Registrar determines are necessary to carry on the activities of the College.
Extension of deadlines
72 The Registrar may, having regard to the specific circumstances of the licensee, extend the deadline for payment of the licence renewal fees by a licensee and for filing the annual licensee report.
Licensees to advise Registrar
73 A licensee must advise the Registrar in writing as soon as feasible after the occurrence of any of the following:
- (a) they are served with an application for bankruptcy, make an assignment of property for the benefit of creditors or present a proposal in bankruptcy to creditors under the Bankruptcy and Insolvency Act;
- (b) they have a judgment entered against them by a court;
- (c) they are personally subject to an order for costs;
- (d) they are charged with, plead guilty to or are found guilty of any offence under the Criminal Code, the Controlled Drugs and Substances Act, the Income Tax Act, the Excise Tax Act, a provincial act respecting securities, employment standards or official languages or any other provincial act that creates an offence that implicates an individual’s integrity; or
- (e) they have their professional licence restricted or suspended by a professional regulatory body, or are found by a professional regulatory body to have committed professional misconduct or to be incompetent within the meaning of the statute under which the body made its finding.
Licence Suspension
Notice of suspension
74 The Registrar must give the notice under subsection 35(2) of the Act to the licensee at least seven days before the licence suspension is to take effect and must include in the notice the reasons for the suspension.
Lifting of suspension
75 (1) The Registrar must reinstate a licence suspended under section 35 of the Act if the licensee, within three years after the date of the suspension, corrects the failure that resulted in the suspension and pays to the College the reinstatement fee set out in item 17 of Schedule 1, together with any outstanding fees owed by the licensee.
Lifting of suspension after three years
(2) The Registrar must reinstate a licence that has been suspended under section 35 of the Act for more than three years if the Registrar determines that the licensee is of good character, is fit to practise and has
- (a) corrected the failure that resulted in the suspension;
- (b) completed any continuing professional development requirements that the Registrar may specify;
- (c) completed any further training and examinations that the Registrar may specify to address the failure that resulted in the suspension; and
- (d) paid to the College the fee set out in item 17 of Schedule 1, together with any outstanding fees owed by the licensee.
Revocation
Revocation after five-year suspension — notice
76 For the purpose of subsection 35(4) of the Act, the Registrar may revoke a licence that has been suspended for at least five years by giving notice to the licensee at their last known email address at least 30 days before the day on which the revocation is to take effect.
Surrender of Licence
Application to surrender — requirements
77 (1) A licensee who wishes to surrender their licence under section 36 of the Act must submit an application to the Registrar that contains the following information:
- (a) their current and, if available, future contact information;
- (b) the reason for the surrender of the licence;
- (c) their complete professional employment history;
- (d) confirmation of the following:
- (i) that they have completed all client matters or made arrangements to the satisfaction of their clients to have the clients’ files returned to them or transferred to one or more licensees whose class of licence permits them to proceed with the file or files being transferred,
- (ii) that they have assigned to one or more licensees described in subparagraph (i) any matters in progress at CIPO and have advised the appropriate Office of CIPO in writing of the name of the successor licensee or licensees, and
- (iii) the location of any of their files that are not returned to the clients or transferred as described in subparagraph (i); and
- (e) the applicable fees set out in items 18 and 19 of Schedule 1, together with any outstanding fees owed by the licensee, payable to the College.
Verification of information
(2) The Registrar may seek independent verification from a successor licensee of the information provided by a licensee under subparagraph (1)(d)(ii).
Surrender — approval and effective date
78 The Registrar may approve the surrender of a licence and set the effective date of the surrender if the Registrar is satisfied that the application to surrender the licence is complete and that the licensee is not the subject of
- (a) an investigation under section 37 of the Act; or
- (b) an application by the Investigations Committee under subsection 49(1) of the Act.
Deemed surrender
79 A licence is deemed to have been surrendered on the appointment of the licensee to the judiciary or on the death of the licensee.
PART 5
Registers and Certificates
Removal of personal information by Registrar
80 The Registrar must not make public in the Registers any of a licensee’s personal information, as defined in section 3 of the Privacy Act, that was added in accordance with section 28 or 31 of the Act.
Registrar’s certificate
81 On the request of a licensee and on payment to the College of the fee set out in item 20 of Schedule 1, the Registrar must produce a certificate that sets out the information in respect of the licensee that is contained in the Register.
Foreign practitioners — requirements
82 (1) A foreign practitioner who makes a request under paragraph 19(1)(b) or 20(1)(b) of the Regulations must pay to the College the fee set out in item 21 of Schedule 1.
Foreign practitioners — continued inclusion in Register
(2) In order to continue to be included in the Register, a foreign practitioner must provide the statement required by subsection 19(2) or 20(2) of the Regulations each year during the period beginning on May 1 and ending on June 30.
Additional requirements
(3) The statement must be accompanied by
- (a) proof, furnished by the relevant competent authority in the foreign practitioner’s country of residence, that they are authorized to act as a patent agent or as a trademark agent in that country; and
- (b) the fee set out in item 22 of Schedule 1, payable to the College.
Extension of deadlines
(4) The Registrar may, having regard to the specific circumstances of a foreign practitioner, extend the deadline for payment of the fee referred to in paragraph (3)(b).
Change of status
83 A foreign practitioner must notify the Registrar in writing without delay of the occurrence of any of the following:
- (a) they become a resident of Canada;
- (b) their country of residence changes, in which case they must provide the name of their new country of residence;
- (c) the country where they are authorized as a patent agent or trademark agent changes, in which case they must provide proof of the new authorization, furnished by the relevant competent authority; or
- (d) they cease to be authorized to act as a patent agent or trademark agent in any country.
Removal from Registers
84 The Registrar must remove from the Registers the name and contact information of any individual who no longer meets the requirements set out in paragraph 19(1)(a) or 20(1)(a) or subsection 19(2) or 20(2) of the Regulations.
PART 6
Investigations
Investigation
85 The Registrar must not dismiss a complaint when there are reasonable grounds to believe that the licensee who is the subject of the complaint has committed professional misconduct or was incompetent.
Request for appeal
86 A complainant’s request under subsection 38.1(4) of the Act for an appeal of the Registrar’s decision must be made in writing.
Licensee’s application for review of provisional action
87 (1) An application to the Discipline Committee under subsection 37.2(1) of the Act must be submitted to the Registrar and include a copy of the decision of the Investigations Committee made under subsection 37.1(1) of the Act and a description of the reasons for the appeal.
Registrar to forward application
(2) The Registrar must forward the application for review to the Discipline Committee together with a copy of the decision to be reviewed.
Supplementary information
(3) The Discipline Committee may request
- (a) that the licensee provide it with any additional information the Committee considers necessary to make its decision under subsection 37.2(2) of the Act; and
- (b) that the Investigations Committee provide it with any of the information and documents that the Investigations Committee considered in making its decision under subsection 37.1(1) of the Act.
Notice of investigation
88 The notice under section 38 of the Act must
- (a) be made in writing;
- (b) request that the licensee provide any further representations in writing within 30 days after the day of the notice; and
- (c) inform the licensee that there is to be no oral hearing in connection with the complaint.
PART 7
Fees
Annual adjustment
89 Every fee set out in Schedule 1 is to be adjusted in each fiscal year on January 1 by the percentage change in the October All-items Consumer Price Index for Canada — as published by Statistics Canada under the Statistics Act — between the month of October in the preceding year and the month of October in the year before that year, and rounded to the next highest dollar.
PART 8
Amendment to These By-laws, Repeals and Coming into Force
Amendment to these By-Laws
90 Paragraph 69(2)(d) of these By-laws is repealed.
Repeals
91 The following By-laws are repealed:
- (a) By-laws of the College of Patent Agents and Trademark Agents (College) footnote 1; and
- (b) By-laws of the College of Patent Agents and Trademark Agents (Board) footnote 2.
Coming into Force
May 1, 2023
92 (1) These By-laws, other than section 90, come into force on May 1, 2023.
January 1, 2024
(2) Section 90 comes into force on January 1, 2024.
SCHEDULE 1
(Subsections 45(2) and (3), 46(2) and (4), 48(2) and (3), 50(2) and (4) and 51(3), paragraph 52(c), subsections 55(3), 56(1) and 59(2), paragraph 70(a), subsection 75(1), paragraphs 75(2)(d) and 77(1)(e), section 81, subsection 82(1), paragraph 82(3)(b) and section 89)
| Item | Description | Fee ($) |
|---|---|---|
| 1 | Application for a class 1 licence | 250 |
| 2 | Application for a class 2 licence | 150 |
| 3 | Application for a class 3 licence | 250 |
| 4 | Application for a class 4 licence | 150 |
| 5 | Change from a class 2 licence to a class 1 licence | 150 |
| 6 | Change from a class 4 licence to a class 1 licence or class 2 licence, less than three years | 150 |
| 7 | Change from a class 4 licence to a class 1 licence or a class 2 licence, three years or more | 250 |
| 8 | Register to write the qualifying examinations or any part of the examinations | 350 |
| 9 | Request to re-mark failed qualifying examinations, per part of the examinations | 500 |
| 10 | Issuance or renewal of a class 1 licence | 1,800 |
| 11 | Renewal of a class 1 licence for a licensee who is both a patent agent and a trademark agent | 2,700 |
| 12 | Issuance or renewal of a class 2 licence | 1,500 |
| 13 | Renewal of a class 2 licence for a licensee who is both a patent agent and a trademark agent | 2,250 |
| 14 | Issuance and first and second renewals of a class 3 licence | 150 |
| 15 | Renewal of a class 3 licence, third and subsequent renewals | 200 |
| 16 | Issuance or renewal of a class 4 licence | 100 |
| 17 | Reinstatement of a suspended licence | 250 |
| 18 | Application to surrender a class 1 licence or a class 2 licence | 250 |
| 19 | Application to surrender a class 3 licence or a class 4 licence | 100 |
| 20 | Issuance of a Registrar’s certificate | 100 |
| 21 | Foreign practitioner — initial inclusion in the Register | 250 |
| 22 | Foreign practitioner — maintain name in the Register for one year | 180 |
SCHEDULE 2
(Subsections 7(1) and 44(1))
| Item | Description | Amount ($) |
|---|---|---|
| 1 | Annual remuneration, Chairperson | 20,000 |
| 2 | Annual remuneration, director | 5,000 |
| 3 | Monthly remuneration, Vice-chairperson | 1,250 |
| 4 | Allowance for attendance at a Board meeting, Chairperson — less than four hours | 525 |
| 5 | Allowance for attendance at a Board meeting, Chairperson — four hours or more | 1,050 |
| 6 | Allowance for attendance at a Board meeting, Vice-chairperson — less than four hours | 450 |
| 7 | Allowance for attendance at a Board meeting, Vice-chairperson — four hours or more | 900 |
| 8 | Allowance for attendance at a Board meeting, director — less than two hours | 150 |
| 9 | Allowance for attendance at a Board meeting, director — two hours or more but less than four hours | 350 |
| 10 | Allowance for attendance at a Board meeting, director — four hours or more | 700 |
| 11 | Allowance for attendance at a committee meeting, committee chairperson — less than four hours | 525 |
| 12 | Allowance for attendance at a committee meeting, committee chairperson — four hours or more | 1,050 |
| 13 | Allowance for attendance at a committee meeting, committee member — less than two hours | 150 |
| 14 | Allowance for attendance at a committee meeting, committee member — two hours or more but less than four hours | 350 |
| 15 | Allowance for attendance at a committee meeting, committee member — four hours or more | 700 |
| 16 | Allowance for preparation time by a non-director committee member for a committee meeting, excluding Discipline Committee hearings, of less than two hours | 150 |
| 17 | Allowance for preparation time by a non-director committee member for a committee meeting, excluding Discipline Committee hearings, of two hours or more but less than four hours | 350 |
| 18 | Allowance for preparation time by a non-director committee member for a committee meeting, excluding Discipline Committee hearings, of four hours or more | 700 |
| 19 | Travel allowance to attend a Board meeting or committee meeting — less than four hours of travel time | 175 |
| 20 | Travel allowance to attend a Board meeting or committee meeting — four hours or more of travel time | 350 |
| 21 | Allowance for attendance at a Discipline Committee hearing, first and second days — less than four hours | 350 |
| 22 | Allowance for attendance at a Discipline Committee hearing, first and second days — four hours or more | 700 |
| 23 | Allowance for attendance at a Discipline Committee hearing, third and subsequent days — less than four hours | 500 |
| 24 | Allowance for attendance at a Discipline Committee hearing, third and subsequent days — four hours or more | 1,000 |
EXPLANATORY NOTE
(This note is not part of the By-laws.)
Pursuant to sections 75, 76, 87 and 88 of the College of Patent Agents and Trademark Agents Act (the Act) and section 18 of the College of Patent Agents and Trademark Agents Regulations, the board of directors (the Board) of the College of Patent Agents and Trademark Agents (the College) proposes to make the By-laws of the College of Patent Agents and Trademark Agents, which will consolidate and update the licensing and governance requirements of the College into one set of by-laws.
The College has authority over all aspects of the profession, from the training and examination requirements for new agents to addressing concerns and complaints of misconduct and incompetence. It also oversees other aspects of regulation to promote intellectual property services and ensure public protection through continuing competence initiatives, insurance requirements and continuing professional development.
The College is self-funding and collects fees from the profession for its operations, which fees are updated in the proposed By-laws.
Contact
Juda Strawczynski
CEO and Registrar
College of Patent Agents and Trademark Agents
Telephone: 343‑803‑5358
Email: ceo@cpata-cabamc.ca