Wissam Aoun is assistant professor of law, University of Detroit Mercy and director, International Intellectual Property Law Clinic, a joint program of Windsor Law and Detroit Mercy
The Canadian patent-agent profession is an obscure profession, formed from a tight-knit community, centralized in several major cities. What many do not know is that the Canadian patent-agent profession literally holds the keys to the patent office.
In most circumstances, a patent agent must be appointed to transact any business at all with the patent office, whether filing applications, communicating with the office or even making routine payments. Corporations and institutions are legally prohibited from conducting business with the patent office – they must appoint an agent to do so on their behalf. And of course, professional patent-agent fees come along with all of these services.
For years, the Canadian patent-agent profession has managed to avoid much public scrutiny for the duration of its existence. As Canada has slowly started transitioning into an innovation-driven economy, access to intellectual-property services has become a concern for the Canadian public. A number of recent studies show that access to affordable intellectual-property services is a serious problem for Canada's growing innovation economy.
Accordingly, the patent-agent profession, the regulation thereof and its effect on access to affordable services have now started to garner public attention. Most patent-related services can be carried out by practically any consultant, with or without credentials. Despite this fact, all roads to the patent office must pass through an agent. As such, the Canadian patent-agent profession has become the Kafkaesque castle standing between Canadians and their patent office.
How does one become a patent agent in Canada? There are no official patent-agent schools or institutional training programs. Training is left almost entirely to a mandatory two-year "on the job" apprenticeship, with very few jobs available for individuals wishing to enter into patent practice. Following this mandatory two-year apprenticeship, individuals must still pass a licensing examination in order to acquire their agent credentials. In recent years, the first-time pass rate has been as low as 2 per cent. Of the countries that still regulate practice before their respective patent offices, Canada's overall pass rate is by far the lowest.
An analysis of recent patent-agent exams reveals highly subjective marking criteria, solutions that are of questionable legal accuracy and marking criteria that, in some instances, appears to be applied inconsistently. The Canadian Intellectual Property Office has, for many years, outsourced its responsibility for overseeing the exam, instead paying the professional association representing the interests of patent agents a relatively large annual fee for the exam's development and much of its administration. There is little evidence that the exam has ever undergone a comprehensive validation study.
In fact, year to year, the exam questions are created by two to four individuals, alone, with practically no input or evaluation by outside reviewers, or anyone else for that matter.
Canada's approach to regulating this field of service is completely out of step with comparable jurisdictions. Furthermore, there is a current push for self-regulation of the profession, along with more stringent licensing requirements; the proposed licensing framework would make Canada an overwhelming outlier amongst our peers.
Interestingly, two countries that are very comparable to Canada – Britain and Australia – have undertaken competition agency reviews of their respective patent-professional regulatory regimes. In both Britain and Australia, reviews concluded that the patent profession, which at the time of review was regulated in a very similar fashion to Canada, was severely overregulated leading to inordinately high prices and an underserviced market. Both jurisdictions have since reformed licensing requirements, with Britain completely deregulating the profession.
The Canadian push toward self-regulation and ever-increasing stringency in licensing requirements seems to come at a time when the general international trend is moving toward less regulation. More concerning is the fact that, by some accounts, the intellectual-property needs of a burgeoning Canadian innovation economy are seriously underserviced, calling into question what effect the current regulatory regime is having on public access to affordable intellectual-property services.