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Unsupervised Training for 24 months – Summary of the July 7, 2022 decision of the Registration Committee

Situation

In August 2021, an Applicant applied to write the patent agent qualifying examinations (PAQE). To qualify to write the PAQE, applicants must have completed a 24-month supervised training period. The Registrar determined that, because the Applicant’s training was self-directed (and not supervised) the Applicant did not meet the requirements to sit the PAQE.

Supervision is a key component of the training process as it provides agents-in-training with an opportunity to receive guidance from an experienced professional. It is not in the public interest to waive the 24-month supervised training requirement where the Applicant did not have training that substituted for the structure and oversight from an experienced professional.

The Applicant maintained that their self-directed training should be acceptable, since the training occurred under the former Patent Rules, which were revoked on June 27, 2021, with the coming-into-force of the College of Patent Agents and Trademark Agents Act. The Applicant submitted a request for review of the Registrar’s decision to the Registration Committee.

Registration Committee Decision

The Registration Committee determined that, at the time of the application, the College had been established. Therefore, the Committee determined that the Registrar’s decision that the Applicant’s self-directed training “does not equal what a trainee would receive working under supervision and under an approved training agreement” and “[f]or that reason, no credit towards the required training period is being allowed” was reasonable

Summary of the July 7, 2022 decision of the Registration Committee

In August 2021, an Applicant applied to write the  patent agent qualifying examinations (PAQE) to become a patent agent. To qualify to write the PAQE, applicants must have completed a 24-month supervised training period. The Applicant submitted that their training period, which was self-directed prior to CPATA being established, met this requirement.

The Registrar determined the Applicant’s self-directed training was not acceptable toward the 24-month supervised training requirement and the Applicant did not meet the requirements to sit the QE.

The Applicant requested a review of the Registrar’s decision. .

The Registration Committee determined the decision of the Registrar was reasonable for the following reasons:

  1. The CPATA rules apply to the Applicant’s application

At the time of the application, the College had been established as the regulator.

The Applicant wished to rely on the former Patent Rules, which were revoked on June 27, 2021.

On June 28, 2021, the Registrar became the authority for issuing agent in training licences pursuant to the College of Patent Agents and Trademark Agents Act (the “Act”).[1]

Transitional Provisions in the Regulations contemplated applicants who may have been able to write the QE under the previous Patent Rules regime. However, at the time of this application, the Applicant did not qualify to be a “deemed holder of a patent/trademark agent in training licence” in accordance with the Transitional Provisions.

The Transitional Provisions required that for an individual to be a “deemed holder of a patent/trademark agent in training licence”, the individual must be, for the applicable period[2], “supervised, in respect of [their work while training], (i) by an individual who holds a patent agent licence or who, before the day on which these Regulations come into force, is a patent agent, or (ii) by an individual who is responsible for a legal clinic associated with a Canadian faculty of law.”[3]

  1. The Applicant’s self-taught training does not satisfy the 24-month training requirement and therefore the Applicant is not eligible for the Trademark Agent and Patent Agent Qualifying Examinations (QE)

The applicable legislation, regulations and by-laws state  the 24-month training period is to be supervised and  this supervised training period must be completed for an Applicant to qualify to write the QE.

The current regulatory framework requires

  1. a Class 3 licence to have a training agreement executed by the applicant and the supervisor or a representative of the Patent Office or Office of the Registrar of Trademarks.[4]
  2. that prior to writing the QE, an Applicant must “(a) work under a training agreement for a period of 24 months”.[5]

The Registrar has a Policy on Prior Experience Assessment, which became effective June 28, 2021 (the date the College came into force). The Policy sets out what experience may be considered equivalent to or count towards the required 24-month supervised training period. The Policy, like the Regulations and the By-law, requires prior experience to have been completed under supervision and states that the Registrar will consider “the degree of supervision” when determining whether the prior experience is given credit towards or recognized as meeting the 24-month training requirement.[6]

  1. It is not in the public interest to waive the 24-month training under supervision requirement for Applicants wishing to write the QE.

The Registrar has the authority to waive a requirement if it is in the public interest to do so.[7]

Supervision for the 24-month training period is to provide appropriate oversight for applicants so they receive training in substantive aspects of patent/trademark preparation and prosecution, and   appropriate guidance in the ethical obligations of agents. This is of particular importance with the new establishment of the Code of Professional Conduct.

It is not in the public interest to waive the 24-month supervised training requirement where the Applicant did not have training that substituted for the structure and oversight from an experienced professional. It is not in the public interest to allow an Applicant to, in effect, create their own regulatory oversight by acting as their own supervisor.

Without appropriate supervision during training, the College cannot be satisfied that the Applicant has provided ethical and competent services.

The Committee determined  the Registrar’s decision that the Applicant’s self-directed training “does not equal what a trainee would receive working under supervision and under an approved training agreement” and  “[f]or that reason, no credit towards the required training period is being allowed” was reasonable

[1] S.C. 2018, c. 27, ss. 26(2), 29(2).

[2] The applicable period is defined in the Regulations as beginning either the day on which the Regulations come into force or the day the Applicant gives notice to the College that they meet the requirements set out in ss. 21(1) and/or 22(1) and end on the day the Applicant is issued a licence, the day their licence is surrendered or revoked or the day that is one year after the Regulations come into force.

[3] College of Patent Agents and Trademark Agents Regulations, SOR/2021-129, ss. 21, 22.

[4] By-laws of the College of Patent Agents and Trademark Agents (College) SOR/2021-167, ss. 9(f) and 12(f).

[5] By-laws of the College of Patent Agents and Trademark Agents (College), SOR/2021-167, s. 15.

[6] Registrar’s Policy on Prior Experience Assessment.

[7] By-laws of the College of Patent Agents and Trademark Agents (College) SOR/2021-167, s. 3(3).