College of Patent Agents and Trademark Agents Act

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Sections432

• 1Short title

  This Act may be cited as the College of Patent Agents and Trademark Agents Act.

• 2Definitions

  The following definitions apply in this Act.

• 2[p2]

  Board means the board of directors established under section 13. (conseil)

• 2[p3]

  College means the College of Patent Agents and Trademark Agents established by section 5. (Collège)

• 2[p4]

  investigator means an individual designated under section 42. (enquêteur)

• 2[p5]

  licence means a licence issued under this Act. (permis)

• 2[p6]

  licensee means a patent agent or a trademark agent. (titulaire de permis)

• 2[p7]

  Minister means the federal minister designated under section 4. (ministre)

• 2[p8]

  patent agent means an individual who holds a patent agent licence or a patent agent in training licence issued under section 26. (agent de brevets)

• 2[p9]

  privileged means protected by litigation privilege, by solicitor-client privilege, by the professional secrecy of advocates and notaries or by the privilege set out in section 16.1 of the Patent Act or section 51.13 of the Trademarks Act. (protégé)

• 2[p10]

  Registrar means the Registrar of the College appointed under section 22. (registraire)

• 2[p11]

  trademark agent means an individual who holds a trademark agent licence or a trademark agent in training licence issued under section 29. (agent de marques de commerce)

• 3Binding on Her Majesty

  This Act is binding on Her Majesty in right of Canada or a province.

• 4Designation of Minister

  The Governor in Council may, by order, designate any federal minister to be the Minister for the purposes of this Act.

• 5Establishment
• 5(1)

  A corporation without share capital is established, to be known as the College of Patent Agents and Trademark Agents.

• 5(2)Act not applicable to College

  Subject to any regulations made under paragraph 76(1)(a.1), the Canada Not-for-profit Corporations Act does not apply to the College.

• 6Purpose

  The purpose of the College is 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.

• 7Head office

  The head office of the College is to be in the National Capital Region, as described in the schedule to the National Capital Act.

• 8Capacity

  In carrying out its purpose, the College has the capacity and the rights, powers and privileges of a natural person, including the power to

• 8(a)

  purchase or otherwise acquire, or lease, any real or personal property or immovable or movable;

• 8(b)

  sell or otherwise dispose of, or lease, any of its acquired or leased property; and

• 8(c)

  borrow money.

• 9Not Crown agent

  The College is not an agent of Her Majesty, and the College’s directors, the members of its committees, the Registrar, the investigators and any officers, employees, agents and mandataries of the College are not part of the federal public administration.

• 10Official Languages Act

  The Official Languages Act applies to the College.

• 11Members

  The members of the College are the licensees.

• 12Annual general meeting

  The College must hold an annual general meeting of members within six months after the end of each calendar year, at a time and place in Canada fixed by the Board.

• 13Composition
• 13(1)

  The College has a board of directors composed of at least seven directors, including the Chairperson.

• 13(2)Order fixing number of directors

  The Minister must, by order, fix the number of directors.

• 13(3)Appointed directors

  The Minister may, by order, fix the number of directors that are to be appointed to the Board and appoint those directors.

• 13(4)Maximum number of appointed directors

  The number of appointed directors fixed under subsection (3) must not be greater than the minimum number that is required to constitute a majority of directors on the Board.

• 13(5)Elected directors

  The remaining directors are to be licensees elected in accordance with the by-laws, and at least one elected director must be a patent agent and at least one must be a trademark agent.

• 14Ineligibility

  An individual is not eligible to be appointed or elected as a director if they

• 14(a)

  are less than 18 years of age;

• 14(b)

  have the status of bankrupt;

• 14(c)

  are a member of an association whose primary purpose is to represent the interests of persons who provide advice on patents or trademarks;

• 14(d)

  were, within the preceding 12 months, a member of a governing body or a steering committee of an association referred to in paragraph (c);

• 14(e)

  in the case of an appointment to the Board,

• 14(e)(i)

  are a licensee, or

• 14(e)(ii)

  are employed by a department, as defined in section 2 of the Financial Administration Act; or

• 14(f)

  in the case of election to the Board,

• 14(f)(i)

  have a licence that is suspended, or

• 14(f)(ii)

  meet any other ineligibility criteria set out in the by-laws.

• 15Term
• 15(1)

  Each director is to be appointed or elected for a term of not more than three years, and may be reappointed or re-elected for subsequent terms of not more than three years each.

• 15(2)Determination of term

  The length of a director’s term is

• 15(2)(a)

  set out by the Minister in the order appointing the director, if the director is appointed; or

• 15(2)(b)

  determined in accordance with the by-laws, if the director is elected.

• 15(3)Staggered terms

  For greater certainty, it is not necessary that all directors hold office for terms that begin or end on the same day.

• 15(4)Continuation in office — appointed directors

  Despite subsection (1) and subject to section 17, an appointed director continues to hold office until they are re-appointed or their successor is appointed.

• 15(5)Vacancies during term

  If an elected director has ceased to hold office before the expiry of their term, the Board may, in accordance with the by-laws, appoint an individual to fill that vacancy for the unexpired portion of that term or for any shorter period that the Board fixes.

• 16Removal — appointed directors
• 16(1)

  An appointed director holds office during good behaviour and may be removed for cause by the Minister.

• 16(2)Removal — elected directors

  An elected director may be removed in accordance with the by-laws.

• 17Ceases to be director

  A director ceases to be a director if they

• 17(a)

  die;

• 17(b)

  resign;

• 17(c)

  become bankrupt;

• 17(d)

  become a member of an association whose primary purpose is to represent the interests of persons who provide advice on patents or trademarks;

• 17(e)

  become a member of a governing body or a steering committee of an association referred to in paragraph (d);

• 17(f)

  are removed from office under section 16;

• 17(g)

  in the case of an appointed director,

• 17(g)(i)

  become a licensee, or

• 17(g)(ii)

  become an employee of a department, as defined in section 2 of the Financial Administration Act; or

• 17(h)

  in the case of an elected director,

• 17(h)(i)

  have a licence that is suspended,

• 17(h)(ii)

  cease to be a licensee, or

• 17(h)(iii)

  meet the ineligibility criteria set out in the by-laws.

• 18Remuneration

  The College may pay to the directors the remuneration and expenses that are determined in accordance with the by-laws.

• 19Chairperson
• 19(1)

  The Chairperson is to be elected by the Board from among the directors in accordance with the by-laws.

• 19(2)Duties

  The Chairperson presides over meetings of the Board and performs any other duties that are assigned to the Chairperson by the by-laws.

• 19(3)Removal

  The Board may remove the Chairperson in accordance with the by-laws.

• 20Meetings
• 20(1)

  The Board must hold a meeting at least once every calendar year.

• 20(2)Open to public

  Subject to the by-laws, meetings of the Board are open to the public.

• 20.1Power to act on College’s behalf

  For the purposes of this Act, the Board may act on the College’s behalf and may, by by-law, authorize the College’s directors, the members of its committees, the Registrar, the investigators and any officers or employees of the College to act on behalf of the College.

• 21Investigations Committee and Discipline Committee
• 21(1)

  Two committees of the College are established, to be known as the Investigations Committee and the Discipline Committee.

• 21(2)Appointment

  The members of each committee are to be appointed by the Board in accordance with the regulations.

• 21(3)Limitation

  An individual is not permitted to be a member of either committee if

• 21(3)(a)

  they are a member of an association whose primary purpose is to represent the interests of persons who provide advice on patents or trademarks; or

• 21(3)(b)

  they are a member of a governing body or a committee of an association referred to in paragraph (a).

• 21(4)Limitation

  An individual is not permitted to be a member of the Discipline Committee and the Investigations Committee at the same time.

• 22Registrar
• 22(1)

  The Board must appoint a Registrar of the College, who is responsible for the Register of Patent Agents and the Register of Trademark Agents.

• 22(2)Delegation

  Subject to the regulations, the Registrar may delegate any of the powers, duties and functions conferred on the Registrar under this Act.

• 23Chief Executive Officer

  The Board may appoint a Chief Executive Officer, who is responsible for the College’s day-to-day operations.

• 23.1Responsibility for damages — directors and others

  No action or other proceeding for damages lies or may be instituted against any of the following persons for anything done or omitted to be done in good faith in the exercise or purported exercise of any power, or in the performance or purported performance of any duty or function, conferred on that person under the Act:

• 23.1(a)

  a current or former director of the Board;

• 23.1(b)

  a current or former member of a committee of the College;

• 23.1(c)

  the Registrar or a former Registrar;

• 23.1(d)

  a current or former investigator;

• 23.1(e)

  a current or former officer, employee, agent or mandatary of the College; and

• 23.1(f)

  a person who is or has been engaged by the College.

• 23.2Right of indemnification

  The College must indemnify the persons referred to in section 23.1 against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by them in respect of any civil, criminal, administrative or other proceeding in which they are involved for anything done or omitted to be done in good faith in the exercise or purported exercise of any power, or in the performance or purported performance of any duty or function, conferred on that person under the Act.

• 23.3Responsibility for damages — complainant or others

  No action or other proceeding for damages lies or may be instituted against a person for disclosing any information or document to the College or to an investigator in good faith, or for making a complaint about a licensee to the College in good faith.

• 24Powers of Minister
• 24(1)

  The Minister may

• 24(1)(a)

  review the Board’s activities and require the Board to provide reports and information, other than privileged information, to the Minister; or

• 24(1)(b)

  require the Board to do anything — including to make, amend or repeal a regulation or by-law — that, in the Minister’s opinion, is advisable to carry out the purposes of this Act.

• 24(2)Deemed best interests

  Compliance by a director of the Board with a requirement of the Minister is deemed to be in the best interests of the College.

• 25Annual report
• 25(1)

  On or before March 31 of each year, the College must submit to the Minister a report on the College’s activities during the preceding calendar year.

• 25(2)Tabling report

  The Minister must cause a copy of the report to be tabled in each House of Parliament on any of the first 15 days on which that House is sitting after the day on which the Minister receives it.

• 26Patent agent licence
• 26(1)

  On application, the Registrar must issue a patent agent licence to an individual who meets the requirements under the regulations.

• 26(2)Patent agent in training licence

  On application, the Registrar must issue a patent agent in training licence to an individual who meets the requirements under the regulations.

• 26(3)Conditions

  A licence issued under this section is subject to any conditions imposed under this Act.

• 27Representation before Patent Office

  Subject to any restrictions imposed under this Act, a patent agent whose licence is not suspended is entitled to represent persons in the presentation and prosecution of applications for patents or in other business before the Patent Office.

• 28Register
• 28(1)

  The Register of Patent Agents must include the following information:

• 28(1)(a)

  the name and contact information of every patent agent and the name and contact information of any firm of which the patent agent is a member;

• 28(1)(b)

  for every patent agent, any conditions that are imposed on their licence under this Act and any restrictions that are imposed under this Act on their entitlement to provide representation;

• 28(1)(c)

  in the case of a patent agent whose licence is suspended, an indication that their licence is suspended and the date on which it was suspended;

• 28(1)(d)

  for every patent agent, all disciplinary measures imposed on them by the Discipline Committee;

• 28(1)(e)

  the name of every individual whose patent agent licence or patent agent in training licence was surrendered or revoked; and

• 28(1)(f)

  any other information required by the regulations or by-laws.

• 28(2)Updated information

  The Registrar must ensure that the information included in the Register is updated in a timely manner.

• 28(3)Available to public

  The Register must be made available to the public on the College’s website in a searchable format.

• 28(4)Information for Commissioner of Patents

  The Registrar must provide the Commissioner of Patents, within the time and in the form and manner that are specified by the Commissioner, with the most recent information referred to in paragraph (1)(a), other than information relating to a patent agent whose licence is suspended.

• 29Trademark agent licence
• 29(1)

  On application, the Registrar must issue a trademark agent licence to an individual who meets the requirements under the regulations.

• 29(2)Trademark agent in training licence

  On application, the Registrar must issue a trademark agent in training licence to an individual who meets the requirements under the regulations.

• 29(3)Conditions

  A licence issued under this section is subject to any conditions imposed under this Act.

• 30Representation before Office of the Registrar of Trademarks

  Subject to any restrictions imposed under this Act, a trademark agent whose licence is not suspended is entitled to represent persons in the presentation and prosecution of applications for the registration of trademarks or in other business before the Office of the Registrar of Trademarks.

• 31Register
• 31(1)

  The Register of Trademark Agents must include the following information:

• 31(1)(a)

  the name and contact information of every trademark agent and the name and contact information of any firm of which the trademark agent is a member;

• 31(1)(b)

  for every trademark agent, any conditions that are imposed on their licence under this Act and any restrictions that are imposed under this Act on their entitlement to provide representation;

• 31(1)(c)

  in the case of a trademark agent whose licence is suspended, an indication that their licence is suspended and the date on which it was suspended;

• 31(1)(d)

  for every trademark agent, all disciplinary measures imposed on them by the Discipline Committee;

• 31(1)(e)

  the name of every individual whose trademark agent licence or trademark agent in training licence was surrendered or revoked; and

• 31(1)(f)

  any other information required by the regulations or by-laws.

• 31(2)Updated information

  The Registrar must ensure that the information included in the Register is updated in a timely manner.

• 31(3)Register available to public

  The Register must be made available to the public on the College’s website in a searchable format.

• 31(4)Information for Registrar of Trademarks

  The Registrar must provide the Registrar of Trademarks, within the time and in the form and manner that are specified by the Registrar of Trademarks, with the most recent information referred to in paragraph (1)(a), other than information relating to a trademark agent whose licence is suspended.

• 32Standards of professional conduct and competence

  A licensee must meet the standards of professional conduct and competence that are established by the code of professional conduct. A licensee who fails to meet those standards commits professional misconduct or is incompetent.

• 33Code of professional conduct
• 33(1)

  The Minister must, by regulation, establish a code of professional conduct for licensees.

• 33(2)Amendment or repeal

  Only the Board may, by regulation and with the Minister’s prior written approval, amend or repeal the regulations establishing the code.

• 34Professional liability insurance
• 34(1)

  Subject to subsections (2) and (3), a licensee must be insured against professional liability.

• 34(2)Exception — employee of Her Majesty

  A licensee who is employed by Her Majesty in right of Canada or a province, or by an agent of Her Majesty in right of Canada or an agent or mandatary of Her Majesty in right of a province, is not required to be insured against professional liability for work done as a licensee within the scope of that employment.

• 34(3)Exception — by-laws

  A licensee may be exempted by the by-laws from the application of subsection (1).

• 35Suspension
• 35(1)

  The Registrar may, in accordance with the by-laws, suspend a licence if the licensee fails to

• 35(1)(a)

  pay the annual fee in accordance with the by-laws;

• 35(1)(b)

  pay, within the time and in the manner provided for under this Act, any other fee or amount that the licensee is required to pay under this Act;

• 35(1)(c)

  provide any information or document in accordance with the by-laws;

• 35(1)(d)

  comply with any requirement that is imposed by the by-laws with respect to continuing professional development;

• 35(1)(e)

  comply with a condition of their licence that is imposed under this Act;

• 35(1)(f)

  comply with any requirement with respect to professional liability insurance that is imposed under this Act; or

• 35(1)(g)

  comply with any other requirement that is imposed under the by-laws.

• 35(2)Notification

  The Registrar must notify a licensee in writing if their licence is suspended under this section.

• 35(3)Length of suspension

  A licence is suspended under this section until the licensee complies with the requirements set out in the by-laws to address the failure that led to the suspension or until the licence is revoked by the Registrar under subsection (4).

• 35(4)Revocation

  The Registrar may, in accordance with the by-laws, revoke a suspended licence if it has been suspended under this section for the applicable period of time that is specified in the by-laws.

• 36Surrender of licence

  The Registrar may, in accordance with by-laws, approve the surrender of a licence on application by a licensee made in accordance with the by-laws.

• 37Investigation

  The Investigations Committee must, on the basis of a complaint or on its own initiative, conduct an investigation into a licensee’s conduct and activities if it has reasonable grounds to believe that the licensee has committed professional misconduct or was incompetent.

• 37.1Powers
• 37.1(1)

  The Investigations Committee may take any of the following actions in respect of a licensee who is under investigation if it is satisfied that it is necessary for the protection of the public:

• 37.1(1)(a)

  impose conditions on a licence of the licensee;

• 37.1(1)(b)

  impose restrictions on the licensee’s entitlement to represent persons under section 27 or 30;

• 37.1(1)(c)

  suspend a licence of the licensee.

• 37.1(2)Notice

  The Investigations Committee must notify the licensee in writing of any action taken in respect of the licensee and must inform them of their right to make an application for a review by the Discipline Committee at any time.

• 37.1(3)Action is provisional

  Any action taken under subsection (1) is provisional and ceases to have effect if

• 37.1(3)(a)

  the Discipline Committee makes a decision under subsection 37.2(2) that amends or revokes the action;

• 37.1(3)(b)

  the Investigations Committee dismisses the matter under subsection 49(1);

• 37.1(3)(c)

  the Investigations Committee withdraws the application under section 50;

• 37.1(3)(d)

  the Discipline Committee exercises its powers under section 56; or

• 37.1(3)(e)

  the Discipline Committee renders a decision under section 57.

• 37.2Request for review
• 37.2(1)

  A licensee who receives a notice under subsection 37.1(2) may, at any time, request a review of the decision of the Investigations Committee made under subsection 37.1(1) by making an application to the Discipline Committee.

• 37.2(2)Decision

  On completion of the review, the Discipline Committee may confirm, amend or revoke any action taken by the Investigations Committee. If the Discipline Committee amends the actions, they cease to have effect in the circumstances referred to in paragraphs 37.1(3)(b) to (e).

• 37.2(3)Notice

  The Discipline Committee must, in writing, notify the licensee and the Investigations Committee of its decision and the reasons for it.

• 38Notice to licensee

  The Investigations Committee must give notice, before the conclusion of the investigation and in accordance with the by-laws, of the nature of an investigation to the licensee who is its subject and give the licensee a period of at least 30 days after the date of the notice within which they may make written representations to the Committee.

• 38.1Dismissal or referral
• 38.1(1)

  The Registrar must consider all complaints received by the College relating to professional misconduct or incompetence by a licensee and may, subject to and in accordance with the by-laws, dismiss any complaint, in whole or in part, for any of the reasons set out in the regulations, but if they do not dismiss the complaint the Registrar must refer it to the Investigations Committee for consideration.

• 38.1(2)Notice of dismissal

  If the Registrar dismisses the complaint, the Registrar must notify the complainant in writing of the decision and the reasons for the dismissal and the notice must inform the complainant of their right to appeal the decision to the Investigations Committee within 30 days after the date of the notice.

• 38.1(3)Limitation

  The Registrar is not permitted to disclose privileged information in their notice to the complainant.

• 38.1(4)Appeal

  The complainant who receives a notice under subsection (2) may, within 30 days after the date of the notice, request an appeal of the Registrar’s decision to the Investigations Committee.

• 38.1(5)Decision

  The Investigations Committee must dispose of the appeal by dismissing it or allowing it and, if they allow it, they must consider the complaint.

• 39Role of Investigations Committee

  The Investigations Committee must consider all complaints that are referred to it by the Registrar and make a determination in respect of all appeals requested under subsection 38.1(4).

• 40Conclusion of consideration
• 40(1)

  If, after considering a complaint, the Investigations Committee does not have reasonable grounds to believe that the licensee has committed professional misconduct or was incompetent, the Committee must dismiss the complaint and notify the complainant in writing of the dismissal and the reasons for it.

• 40(2)Limitation

  The Investigations Committee is not permitted to disclose privileged information in its notice to the complainant.

• 41Referral

  With the complainant’s consent, the Investigations Committee may refer a complaint that it has dismissed to a body that has a statutory duty to regulate a profession.

• 42Investigator
• 42(1)

  The Investigations Committee may designate an individual as an investigator to conduct an investigation under the Committee’s direction.

• 42(2)Revocation

  The Investigations Committee may revoke the designation.

• 43Powers of investigator
• 43(1)

  For the purpose of investigating a licensee’s conduct and activities, an investigator may

• 43(1)(a)

  subject to subsection (3), enter the licensee’s business premises at any reasonable time and require the production of any document or other thing that is relevant to the investigation, and examine or copy the document or thing or remove it for examination or copying; and

• 43(1)(b)

  require the licensee, or a business partner or employee of the licensee or any person employed by the same employer as the licensee, to provide any information that is relevant to the investigation.

• 43(2)Privileged information

  An investigator may take any action under subsection (1) with respect to any privileged information, including privileged information contained in a document or other thing, unless the information

• 43(2)(a)

  is subject to litigation privilege or solicitor-client privilege or the professional secrecy of advocates and notaries;

• 43(2)(b)

  is not protected by the privilege set out in section 16.1 of the Patent Act or section 51.13 of the Trademarks Act; and

• 43(2)(c)

  is not related to a patent, a trademark, a geographical indication or a mark referred to in paragraph 9(1)(e), (i), (i.1), (i.3), (n) or (n.1) of the Trademarks Act.

• 43(3)Warrant to enter dwelling-house

  If the licensee’s business premises are in a dwelling-house, the investigator may enter them only with the occupant’s consent or under the authority of a warrant issued under section 44.