The College of Patent and Trademark Agents (CPATA) has announced a significant fee increase effective 2024. The Intellectual Property Institute of Canada (IPIC) has strongly denounced the increase. The profession is caught in the middle.
In my forty years of professional practice, I have witnessed a number of existential threats to our profession. In 1984, the infamous Nielsen Report proposed closing the CIPO and delegating examination of Canadian patent applications to the USPTO. In 2006, proposed revisions to the Law Society Act would have resulted in patent and trademark agency services being deemed legal services, such that the profession in Ontario would have come under the regulatory supervision of the Law Society of Ontario. These threats were averted by the forceful and effective advocacy of IPIC members. The profession stood together through these challenges in order to ensure its survival.
On the heels of CPATA’s announcement of a large increase in licensee fees[2], IPIC responded with a call to the profession to make their voices heard at the annual CPATA AGM on May 25, 2023[3]. A feisty debate also occurred during a question and answer session of a joint CPATA and IPIC presentation on the new competency initiatives[4]. CPATA’s annual general meeting will be interesting. One party who has thus far been silent is the Government of Canada, who enacted CPATA’s enabling legislation that regulates the profession.
CPATA arose out of years of IPIC government lobbying for self-regulation. Unfortunately, we did not achieve self-regulation. We ended up with independent regulation. The CPATA Board is composed of five appointed directors from outside of the profession and four elected directors from within the profession[5]. The elected directors are barred from being members of IPIC, emphasizing the Government’s desire for a strong separation between CPATA and IPIC[6]. Consequently and regrettably, IPIC’s role in setting the policy agenda for the IP agent professions has been dramatically curtailed since the creation of CPATA. Previously, IPIC enjoyed effective control of the patent and trademark agent qualification examinations as well as the conduct of its members in relation to the IPIC Code of Ethics. Both of these critical responsibilities now lie with CPATA, and the code of ethics is no longer voluntary. Moreover, CPATA is empowered to investigate and discipline agents.
It would not be unreasonable, in my opinion, for members of the profession to wonder if we would have been better off soldiering on under the previous regime of very light regulation by CIPO. Maybe we didn’t need CPATA after all? IPIC fought hard for self-regulation, but the Government of Canada had other ideas – namely, independent regulation by an entity the majority of whose directors are government appointees from outside of our profession. Thankfully, four of the CPATA directors are extremely competent and thoughtful former members of IPIC. I am confident they have prioritized the interests of our profession in the circumscribed manner that CPATA allows, and are doing their best in the circumstances.[7]
My concern is that the rhetoric between IPIC and CPATA could be laying the groundwork for another existential threat to the profession. Who knows how the Government will react to this? I believe that it falls on all parties to the debate, especially rank and file members of the profession, to carefully read the CPATA Act and engage in an evidence-based discussion and analysis. Some of the most vocal voices on both sides of the debate are litigators. I believe that the discussion would benefit greatly from the thoughtful engagement of non-lawyer prosecutors who offer different approaches to problem-solving.
So how do we move forward? We have a common goal of making the profession as strong as possible. We are a smart bunch of people. The CPATA Act is available for all to read, and I suggest that the next step is to cool the rhetoric, finger-pointing and blaming, and to consider an evidence-based analysis of how much funding CPATA needs to fulfill its statutory obligations of competency, investigation, discipline. Once funding requirements are understood, rational conversations are needed as to how to fulfill that funding. Creative options could include seeking a small CIPO levy on patent and trademark application filing fees so that the ultimate costs are passed onto the actual users of the system. However options such as this will require a united profession lobbying the Canadian Government. There are likely other options. I encourage individual licensees to read the CPATA Act carefully and formulate evidence-based proposals .Too much is at stake – and creative thinking is needed.
Footnotes
[1] Stephen Perry is a patent agent and co-founder and president of PCK. Steve has been a member of IPIC since 1983 and has served on many committees as well as on Council, and helped with efforts to realize CPATA.
[2] Message from the CEO Regarding Annual Licence Fees: https://cpata-cabamc.ca/en/message-from-the-ceo-regarding-annual-licence-fees/.
[3] IP Newsbreak: Register for CPATA’s AGM on May 25, emailed to members May 12, 2023.
[4] New Competency Profiles for Patent Agents and Trademark Agents, IPIC webinar broadcast May 2, 2023.
[5] College of Patent Agents and Trademark Agents Act, S.C. 2018, c. 27, s. 247, s. 13(5).
[6] College of Patent Agents and Trademark Agents Act, S.C. 2018, c. 27, s. 247, s. 14(c).
[7] Full disclosure: Andrew Currier is my co-founding partner at PCK and one of the elected College directors.
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