By-laws of the College of Patent Agents and Trademark Agents (Board): SOR/2021-168
Canada Gazette, Part II, Volume 155, Number 14
Registration
SOR/2021-168 June 24, 2021
COLLEGE OF PATENT AGENTS AND TRADEMARK AGENTS ACT
The board of directors of The College of Patent Agents and Trademark Agents, pursuant to section 75 of the College of Patent and Trademark Agents Act footnote a, makes the annexed By-laws of the College of Patent Agents and Trademark Agents (Board).
June 24, 2021
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 (Board)
Definitions
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 Chief Executive Officer. (English version only)
- class 1
- with respect to a licence, describes either 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 covered by class 2. (catégorie 1)
- class 2
- with respect to a licence, describes either 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 restrictions under section 27 of the By-laws of the College of Patent Agents and Trademark Agents (College). (catégorie 2)
- class 3
- with respect to a licence, describes either 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. (catégorie 3)
- fees
- means the fees set out in the schedule. (droits)
Fiscal Year
Fiscal year
2 The fiscal year of the College begins on January 1 and ends on December 31 of the same calendar year.
Annual General Meeting
Electronic means
3 The electronic means by which licensees may attend the meeting under section 12 of the Act must be prescribed by the Board.
Notice
4 The CEO must give public notice at least 60 days before the day on which the annual general meeting takes place of the date, means of attendance and, if applicable, the location.
Agenda for annual general meeting
5 The agenda for an annual general meeting must contain the following items for discussion:
- (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 the Board adds to the agenda.
Board of Directors
Term of office
6 The three-year term of office for each elected director commences the day after the annual general meeting at which they were elected.
Quorum
7 A quorum of the Board is achieved if a majority of the directors are present at the meeting.
Duties of Board
8 (1) In the performance of its duties, the Board is to
- (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 operating and capital budgets for the College 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) ensure that the College and the CEO's actions are compliant with legal requirements; and
- (g) in accordance with published policies, consult with working groups it establishes to assist with its duties and functions.
CEO
(2) The Board's duties with respect to the CEO are to
- (a) provide directions to the work of the CEO with established performance expectations, succession planning and regular performance reviews;
- (b) develop regulatory objectives, standards and principles;
- (c) establish any working groups to assist in carrying out the CEO's work;
- (d) monitor the performance of the CEO and of the working groups; and
- (e) oversee effective relations and engagement with members and the public.
Borrowing
9 The Board may, on the credit of the College,
- (a) borrow money and, to that end, charge, mortgage, hypothecate, cede and transfer, pledge or otherwise create an interest in or charge on any property held by the College; and
- (b) pledge any securities or cash that it holds, or give deposits, as security for the payment or performance of any obligation of the College.
Indemnification by College
10 (1) Except in the case of gross or intentional fault, the College must indemnify and save harmless out of the funds of the College every director, committee member and employee or appointee, namely the investigators, and their personal representative, succession or estate, against all of the following:
- (a) the costs inherent to any action against them in the execution of their duties;
- (b) any reasonable costs, charges, expenses, awards and damages they sustain or incur in or about or in relation to the affairs of the College.
Indemnification by CEO
(2) The CEO may indemnify a service provider of the College if the CEO advises the Board in writing in advance.
Officers
Chairperson, Vice-chairperson and CEO
11 The officers of the College are the Chairperson, Vice-chairperson and the CEO, who serves ex officio and does not have a vote at any meeting of the Board.
Duties of Chairperson
12 The duties of the Chairperson are to
- (a) carry out the College's business;
- (b) act as a spokesperson for the Board; and
- (c) participate in the Board's decision making.
Duties of Vice-chairperson
13 The duties of the Vice-chairperson are to
- (a) perform the duties of the Chairperson if the Chairperson cannot perform those duties;
- (b) carry out the duties and responsibilities assigned to the office; and
- (c) participate in the Board's decision making.
Filling vacancies — Chairperson
14 If the office of Chairperson becomes vacant, the Vice-chairperson becomes the Chairperson until the election of a new Chairperson.
Filling vacancies — Vice-Chairperson
15 If the office of Vice-chairperson becomes vacant, the Board must choose a director to serve as Vice-chairperson to hold office until the election of a new Vice-chairperson.
Removal of Chairperson
16 The Board may remove the Chairperson from office if
- (a) it gives at least two weeks notice in writing before the day of the vote in respect of the removal; and
- (b) the Vice-chairperson presides over the meeting during which the vote is held; and
- (c) the directors, by a vote of two-thirds, support the removal.
Board Meetings
Location and frequency of meetings
17 The Board is to meet at least four times per year. The Board sets the location of the meeting or the electronic means to be used in order to hold the meeting.
Electronic means
18 A meeting held by electronic means must be conducted by any means that permits all persons participating in the meeting to communicate with each other simultaneously.
Meetings
19 Board meetings, except a meeting of the committee-of-the-whole are open to the public.
Notice of meetings
20 (1) At least seven days before a Board meeting, the CEO must publish on the College's website
- (a) the agenda and meeting materials that are not confidential; and
- (b) any information that enables the public to participate in the meeting, including how the public can access the meeting if it is to be held by electronic means.
Meeting not invalidated
(2) Failure of the CEO to publish the notice does not invalidate the meeting.
Board meeting agenda
21 A board meeting agenda must relate only to the Board's work.
Simple majority
22 A motion that is tabled at a Board meeting is decided by a majority vote of the directors present at the meeting.
Resolution
23 A resolution adopted at a Board meeting by a majority of directors is valid.
Rules
24 The Board must adopt rules of order.
Adjournments
25 The Chairperson may, with the consent of a majority of directors present, adjourn a meeting to a fixed time and place, and any matter that was on the agenda at the original meeting may be considered and transacted at a reconvened meeting .
In camera — excluding CEO
26 The Board may exclude the CEO from an in camera meeting in order to
- (a) consider the CEO's appointment, reappointment, dismissal, performance or terms of office; or
- (b) provide an opportunity for the directors to discuss matters relevant only to them.
Special Board meetings
27 (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.
Notice
(2) The CEO, on receipt of the notice, must, as soon as possible
- (a) advise the directors and the public of the reason, the date and time, and the electronic means for participating in the meeting;
- (b) publish on the College's website the agenda and meeting materials that are not confidential.
Failure to publish
(3) Failure of the CEO to publish the notice does not invalidate the meeting.
Remuneration
Board and committee members
28 The College pays a per diem of
- (a) $750 for the Chairperson; and
- (b) $550 for Board and committee members.
Expenses
29 Directors and committee members are reimbursed for the reasonable expenses they have incurred for transaction of the College's business.
Reporting on payments
30 The CEO must, at the time the College submits its annual report to the Minister, make public the amounts paid as remuneration and expenses to directors and committee members.
Nominations and Elections
Determining need for elections
31 (1) Each year, the Governance and Nominating Committee determines if, based on the terms of elected directors, an election is necessary.
Election required
(2) If an election is required, the Committee determines whether the position is to be filled by a patent agent, a trademark agent or either.
Publication of dates
(3) The CEO must publish the dates on the College's website for all aspects of the election process.
CEO responsible
(4) The CEO is responsible for the administration of the election process.
Election commissioner
(5) The Board may appoint an election commissioner to address any issues arising in the election process.
Ineligibility
32 For the purposes of subparagraphs 14(f)(ii) and 17(h)(iii) of the Act, the ineligibility criteria are the following:
- (a) in the five years immediately preceding the election day, the individual
- (i) has been found to have committed professional misconduct or been found to be incompetent by the Discipline Committee, or
- (ii) has been found to have committed professional misconduct or been found to be incompetent by a tribunal of a body that has a statutory duty to regulate a profession;
- (b) the individual is the subject of an application by the Investigations Committee to the Discipline Committee under subsection 49(1) of the Act;
- (c) the individual has served as a director for the six years immediately preceding the election day;
- (d) the individual has not provided a declaration regarding conflicts of interest; and
- (e) the individual has not attended an orientation for prospective candidates, facilitated by the Governance and Nominating Committee.
Dispute
33 (1) The CEO must refer a dispute about the ineligibility of a nominee for a position as a board member to the Election Commissioner who, following receipt of the reasons for the CEO's determination regarding ineligibility and a submission from the prospective nominee, must rule on ineligibility.
No review by Board
(2) The ruling of the Election Commissioner is not subject to review by the Board.
Elections electronically
34 Elections for directors are to be held electronically.
Election policy
35 The Board must establish and publish on the College's website an election policy.
Dispute
36 (1) Any dispute that arises during the election period or regarding the election results are to be ruled on by the Election Commissioner.
Final decision
(2) The ruling of the Election Commissioner is not subject to review by the Board.
Eligibility to vote
37 A licensee whose licence is not suspended is eligible to vote in an election for directors.
Withdrawal of nominations
38 A candidate who withdraws from an election must give notice in writing to the CEO.
Dispute — validity of election
39 (1) If a candidate asserts that there are reasonable grounds to dispute the validity of the election process, the candidate may file a notice of dispute with the Governance and Nominating Committee.
Inquiry
(2) If the Committee finds that the notice gives reasonable grounds to doubt the validity of the election process, they must hold an inquiry into the validity of the election process.
Report and recommendations
(3) Following its inquiry, the Governance and Nominating Committee must make a report and recommendations to the Board.
Board may declare validity
40 (1) After reviewing the report and recommendation of the Governance and Nominating Committee, the Board may
- (a) declare the election result to be valid; or
- (b) declare the election result to be invalid and
- (i) may disqualify an apparently successful candidate and declare another candidate to have been elected, or
- (ii) direct that another election be held.
Minor irregularities
(2) The Board is not to declare an election result invalid based on a minor irregularity with respect to the election process.
Vacancies on the Board
41 If there is a vacancy on the Board for an elected director, the Board may appoint a person with the requisite qualifications to fill the vacancy for the remainder of the term.
Removal — elected director
42 The directors, by a vote of two-thirds, may remove an elected director from office for cause if notice of the intention to make the motion is provided to the Board at least two weeks in advance.
Removal — appointed director
43 The directors, by a vote of two-thirds, may ask that a request to the Minister be made to remove an appointed director from office for cause if notice of the intention to make the motion is provided to the Board at least two weeks in advance.
Ineligibility
44 A director who, without a valid reason, is absent from two consecutive meetings of the Board has met the ineligibility criteria under subparagraph 17(h)(iii) of the Act.
Committees
Committees
45 The committees that assist the Board in the exercise of their functions are the
- (a) committee of the College referred to in section 3 of the College of Patent Agents and Trademark Agents Regulations;
- (b) Governance and Nominating Committee; and
- (c) Audit and Risk Committee.
CEO and Registrar
Duties of CEO
46 The duties of the CEO are to
- (a) maintain accurate minutes of Board meetings and have them approved by the Board and maintained by the College;
- (b) provide leadership, support and strategic advice to the Board to assist it in meeting its obligations;
- (c) manage, coordinate and maintain the College's operations, administration, finances and organization;
- (d) develop operation and management policies;
- (e) counsel and assist the Board and committees in carrying out their assigned functions;
- (f) engage, direct and supervise employees and contractors of the College and develop succession plans for College staff and contracted functions;
- (g) assist the Board in complying with the Act, regulations, by-laws and policies affecting it;
- (h) act as the spokesperson for the College; and
- (i) perform all other functions and duties as assigned by the Board.
Deputy CEO
47 (1) The Board may appoint a Deputy CEO who serves as acting CEO in the CEO's absence.
Absence of Deputy CEO
(2) If the office of CEO becomes vacant and there is no Deputy CEO, the Board must appoint an acting CEO until a new CEO is appointed.
Deputy Registrar
48 (1) The Board may appoint a Deputy Registrar who serves as acting Registrar during the Registrar's absence.
Absence of Deputy Registrar
(2) If a vacancy occurs in the office of Registrar and there is no Deputy Registrar, the Board must, as soon as feasible, appoint an acting Registrar until a new Registrar is appointed.
Duties of Registrar
49 (1) The Registrar establishes regulatory policies on their own initiative or at the request of the Board or one of the committees.
Policies
(2) The Registrar must publish the regulatory policies on the College's website.
Registers
Personal information
50 The Registrar may remove any of a licensee's personal information from the Registers under sections 28 or 31 of the Act.
Obligations of Licensees
Information to be provided
51 A licensee must advise the Registrar in writing if the licensee
- (a) is served with an application for a bankruptcy, makes an assignment of property for the benefit of creditors or presents a proposal in bankruptcy to creditors under the Bankruptcy and Insolvency Act;
- (b) has had a judgment entered against them by a court;
- (c) is personally subject to an order for costs;
- (d) is charged with, pleads guilty to or is found guilty of any offence under the Criminal Code, the Controlled Drugs and Substances Act, the Income Tax Act, the Excise Tax Act or under a provincial securities act;
- (e) has been found to have committed professional misconduct or been found to be incompetent by a tribunal of a body that has a statutory duty to regulate a profession.
Class 1 requirements
52 On or before March 31 of each year, licensees who hold a class 1 licence must
- (a) pay the applicable annual fee;
- (b) file the Annual Licensee Report; and
- (c) provide proof of professional liability insurance or proof of exemption from that insurance.
Annual Licensee Report
53 The Annual Licensee Report must contain
- (a) the licensee's mailing address, civic address, email address, telephone number, firm name and address, language proficiency for the delivery of patent or trademark services, areas of practice and the approximate percentage by time or billings associated with each area;
- (b) the licensee's continuing professional development plans; and
- (c) the name of the licensee's insurer and the policy number of the licensee's professional liability insurance or the reason for the licensee's exemption.
Class 2 requirement
54 Licensees who hold a class 2 licence must pay the applicable annual fee on or before March 31 each year.
Class 3 requirement
55 Licensees who hold a class 3 licence must pay the applicable annual fee on or before the anniversary day of the commencement of their licence.
Registrar may extend
56 The Registrar may, having regard to the specific circumstances of the licensee, extend the deadline for payment of fees by any class of license or filing of the Annual Licensee Report by class 1 licensees.
Suspension and Revocation
Notification
57 (1) Notification under subsection 35(2) of the Act must be given to the licensee at least seven days in advance of the suspension of the licence takes effect and must contain the reasons for the suspension.
Reinstatement
(2) The Registrar must reinstate a person whose licence has been suspended if the person corrects the matter that resulted in the suspension and pays the fee for reinstatement within two years from the day of the suspension.
Suspension more than two years
(3) A person whose licence has been suspended for more than two years may apply to have their licence reinstated if they
- (a) correct the matter that resulted in the suspension;
- (b) pay the fee for reinstatement; and
- (c) complete the required continuing professional development requirements.
Revocation
58 For the purposes of subsection 35(4) of the Act, the Registrar must revoke a licence that has been suspended for at least five consecutive years by providing notice to the licensee's last known email address 30 days before the day on which the revocation takes effect.
Surrender
Request to surrender
59 (1) An application under section 36 of the Act to surrender a licence must include payment of all applicable fees and must provide
- (a) current and, if applicable, future contact information;
- (b) the licensee's professional employment history;
- (c) confirmation in writing
- (i) that all client matters have been completed or that arrangements have been made to the satisfaction of the licensee's clients to have the client's files returned to the client or transferred to another licensee,
- (ii) that any matters in progress at the Canadian Intellectual Property Office have been assigned to another licensee and the office has been advised in writing of the successor licensee, and
- (iii) of the location of the files from the licensee's practice.
Surrender
(2) If the Registrar is satisfied that the information they received is sufficient and has confirmed that the applicant is not the subject of a complaint or an investigation under section 37 of the Act, or an application under paragraph 32(b), the Registrar must accept the surrender and set the effective date of surrender.
Investigations — Registrar
Request to Registrar
60 (1) The Registrar may, upon request
- (a) give information to assist in determining if the request merits an investigation into professional misconduct or incompetence of the licensee; and
- (b) take all reasonable steps toward resolving the request.
Request
(2) The request must be submitted on a form provided by the Registrar and must contain all the information with respect to the relationship between the person making the request and the licensee as well as the nature of their concerns.
Refusal
(3) The Registrar may refuse the request and return the matter to the person making the request, with reasons, if the request
- (a) falls outside the College's jurisdiction;
- (b) is premature;
- (c) on its face does not amount to a failure of a licensee to meet the standards of professional conduct and competence established by the code of professional conduct made under subsection 33(1) of the Act;
- (d) is made for an improper purpose, including
- (i) to harass a licensee,
- (ii) to seek relief that is the jurisdiction of civil courts,
- (iii) to harass a licensee's client if the person making the request has an adverse interest,
- (iv) to gather information to be used in another proceeding; or
- (e) lacks substance or a factual basis.
Transitional Provisions
Professional liability insurance — 2021
61 A licensee is not required to be insured against professional liability for the year 2021.
Deadline for 2021 Fees
62 Despite paragraph 52(a), a licensee who holds a class 1 license must pay the applicable fees for the year 2021 by August 31, 2021.
Revocation patent agent licence — country other than Canada
63 (1) On the day of coming into force of these By-laws, the Registrar must revoke the patent agent licence of any individual whose name is included in the Register of Patent Agents under section 19 of the College of Patent Agents and Trademarks Agent Regulations.
Revocation trademark agent licence — country other than Canada
(2) On the day of coming into force of these By-laws, the Registrar must revoke the trademark agent licence of any individual whose name is included in the Register of Trademark Agents under section 20 of the College of Patent Agents and Trademarks Agent Regulations
Coming into Force
64 These By-laws come into force on the day on which paragraph 76(1)(c) of the College of Patent Agents and Trademark Agents Act, section 247 of chapter 27 of the Statutes of Canada, 2018, comes into force, but if they are registered after that day, they come into force on the day on which they are registered.
SCHEDULE
(Section 1)
| Item | Description | Fees ($) |
|---|---|---|
| 1 | Annual Class 1 License | 1000 |
| 2 | Annual Class 1 License (both patent agent and trademark agent) | 1500 |
| 3 | Annual Class 1 License — 2021 | 700 |
| 4 | Annual Class 1 License (both patent agent and trademark agent) — 2021 | 1050 |
| 5 | Annual Class 2 License | 100 |
| 6 | Application — Class 3 License | 250 |
| 7 | Annual Class 3 License | 150 |
| 8 | Annual fee to extend Class 3 registration [beyond 24 months] | 200 |
| 9 | Patent agent qualifying examination (per paper) | 200 |
| 10 | Trademark agent qualifying examination (per paper) | 200 |
| 11 | Failed examination remark | 200 |
| 12 | Application for initial registration as a Class 1 licensee | 250 |
| 13 | Application to change from Class 1 to Class 2 | 150 |
| 14 | Application to change from Class 2 to Class 1 | 150 |
| 15 | Application to surrender licence | 250 |
| 16 | Reinstatement fee from suspended licence | 150 |
| 17 | Registrar certificate | 75 |
N.B. The Explanatory Note for these By-laws appears following SOR/2021-167, By-laws of the College of Patent Agents and Trademark Agents (College).