Don’t force lawyer agents to be doubly insured

  • October 27, 2021

The College of Patent Agents and Trademark Agents, or CPATA, regulates patent and trademark agents in Canada. It recently released a consultation paper on a proposal for mandatory liability insurance coverage for patent and trademark agents.

The Intellectual Property Section, along with the Ethics and Professional Responsibility Subcommittee of the Canadian Bar Association, in a letter to CPATA’s interim CEO Darrel Pink, agree with the goal of mandating liability insurance for patent and trademark agents to protect the public. But the CBA Sections say CPATA’s proposed insurance requirement should not duplicate existing liability insurance requirements intellectual property lawyers already have to meet.

As the Section and Subcommittee explain, intellectual property professionals in Canada include lawyer agents (registered patent or trademark agents who are also qualified to practice law) and registered patent or trademark agents who are not lawyers.

The Sections support the need to ensure all intellectual property professionals meet the highest standards of practice. “Mandatory professional liability insurance is an important aspect of CPATA’s regulatory mandate,” they write. “We appreciate that mandatory professional liability insurance requirements enhance the public interest and public confidence in CPATA’s members.”

However, the Sections note, lawyers in Canada are already obliged to carry a minimum of $1 million in professional liability insurance and are also subject to mandatory trust protection indemnity policies. Most lawyers and law firms in Canada carry coverage well in excess of the mandatory minimums.

The Sections point out that CPATA’s consultation paper makes no mention of the need to address overlapping regulatory regimes for lawyer agents. “In our view, CPATA should not impose additional insurance requirements on lawyer agents.” Lawyer agents who provide proof of existing insurance coverage should be exempted from CPATA’s requirement. The same exemption should apply to non-lawyer agents who have equivalent coverage obtained by law firms that employ them.

Forcing patent and trademark agents who already have insurance that meets the minimum coverage proposed in CPATA’s consultation paper would “place an unnecessary and arguably disproportionate burden on these members and would not assist CPATA to meet its regulatory objectives or further its public interest,” the Sections conclude.