Canadian Lawyer

40 A p r I L 2 0 1 5 w w w . C A N A D I A N L a w y e r m a g . c o m continuing professional development and a code of values and ethics for agents. "Right now, CPD and code of ethics are only voluntary on the part of non-lawyer agents," says Wilson. "Those agents who are already lawyers are bound by their own rules of professional conduct and to a great extent those rules will overlap those being proposed for agents." Wilson says the fact is despite patent and trademark agents engaging in quasi-legal work, their ongoing training and main- tenance of their level of competence has "kind of fallen by the wayside." Currently, IPIC, which participated in the modernization project, is the main source of ongoing professional develop- ment and a code of ethics for patent and trademark agents, whether they are lawyers or not. However, membership is voluntary. "For a lot of lawyers who practise as patent and trademark agents, the additional CPD requirements are not going to add a signifi- cant burden," says Wilson. While the implementation details aren't available yet, what's intended is for the CPD subject matter suitable for patent and trademark agents to overlap what a lawyer practising in those fields would normally take as CPD. It will, however, create new requirements for non-lawyer agents. "One of the steps to put agents in a position to govern themselves does require ongoing CPD and maintaining a level of quality — all of this is viewed as assisting in those goals." While the report from CIPO makes it clear it isn't intended to move towards self-regulation, there certainly have been voices within the agent community championing the idea of self-regulation and those in favour of establishing some kind of privilege similar to the privi- lege enjoyed by lawyers and their clients. "Privilege and self-governance have been long-term goals of IPIC," says Wilson. The idea of having regulation just to "modernize" the IP system is great, but part of modernization should be dealing with the rationale for some of these changes and privilege was certainly part of the rationale, says Cynthia Rowden, of Bereskin & Parr LLP. Rowden, who is a lawyer and a trade- mark agent, says the rationale for CIPO's review wasn't to respond to widespread concerns about competency, it was that the profession was willing to sit down and talk to CIPO about some kind of regulation. "It was all done with a view to a quid pro quo and that is not mentioned in the consulta- tion document, but the quid pro quo is that agents in Canada in their capacity as trademark or patent agents, whether or not they are lawyers, do not clearly have privi- lege and that is a situation where Canada stands separate from most other countries," she says. IPIC and its members have been trying to persuade the government to adopt prac- tices that are in line with our major trading partners and ensure privilege attaches to the confidential work that patent and trade- mark agents do. Rowden says the issue of privilege has been a "long standing goal" of IPIC and a topic on the back burner with CIPO for more than a decade. It has never really fully responded to it in terms of why agents in Canada don't have it, she says. Privilege and self-regulation aside, what CIPO is ultimately trying to do is look at the requirements of other professions to L E g A L r E p o rt \ I N t E L L E C t u A L p r o p E rt y Our bite is even worse than our roar. We are accomplished trial lawyers with years of study in science and engineering and we have the courtroom successes to prove it. It's treacherous out there, so if your client's IP is threatened – talk to us. Editors of the Canadian Patent Reporter it all starts somewhere www.ridoutmaybee.com Client's IP at Risk? ntitled-3 1 13-12-09 7:10 PM

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