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Between Legality and Legitimacy in Patent Agent Regulation: the Future of the Patent Profession

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Between Legality and Legitimacy in Patent Agent Regulation: the Future of the Patent Profession University of Windsor Scholarship at UWindsor Electronic Theses and Dissertations Theses, Dissertations, and Major Papers 8-31-2018 BETWEEN LEGALITY AND LEGITIMACY IN PATENT AGENT REGULATION: THE FUTURE OF THE PATENT PROFESSION Wissam Aoun University of Windsor Follow this and additional works at: https://scholar.uwindsor.ca/etd Recommended Citation Aoun, Wissam, "BETWEEN LEGALITY AND LEGITIMACY IN PATENT AGENT REGULATION: THE FUTURE OF THE PATENT PROFESSION" (2018). Electronic Theses and Dissertations. 7494. https://scholar.uwindsor.ca/etd/7494 This online database contains the full-text of PhD dissertations and Masters’ theses of University of Windsor students from 1954 forward. These documents are made available for personal study and research purposes only, in accordance with the Canadian Copyright Act and the Creative Commons license—CC BY-NC-ND (Attribution, Non-Commercial, No Derivative Works). Under this license, works must always be attributed to the copyright holder (original author), cannot be used for any commercial purposes, and may not be altered. Any other use would require the permission of the copyright holder. Students may inquire about withdrawing their dissertation and/or thesis from this database. For additional inquiries, please contact the repository administrator via email ([email protected]) or by telephone at 519-253-3000ext. 3208. BETWEEN LEGALITY AND LEGITIMACY IN PATENT AGENT REGULATION: THE FUTURE OF THE PATENT PROFESSION By WISSAM AOUN A Thesis Submitted to the Faculty of Graduate Studies through the Faculty of Law in Partial Fulfillment of the Requirements for the Degree of Master of Laws at the University of Windsor Windsor, Ontario, Canada 2018 © 2018 Wissam Aoun BETWEEN LEGALITY AND LEGITIMACY IN PATENT AGENT REGULATION: THE FUTURE OF THE PATENT PROFESSION by Wissam Aoun APPROVED BY: ______________________________________________ L. Miljan Department of Political Science ______________________________________________ M. Tawfik Faculty of Law ______________________________________________ L. Jacobs, Advisor Faculty of Law July 23, 2018 DECLARATION OF ORIGINALITY I hereby certify that I am the sole author of this thesis and that no part of this thesis has been published or submitted for publication. I certify that, to the best of my knowledge, my thesis does not infringe upon anyone’s copyright nor violate any proprietary rights and that any ideas, techniques, quotations, or any other material from the work of other people included in my thesis, published or otherwise, are fully acknowledged in accordance with the standard referencing practices. Furthermore, to the extent that I have included copyrighted material that surpasses the bounds of fair dealing within the meaning of the Canada Copyright Act, I certify that I have obtained a written permission from the copyright owner(s) to include such material(s) in my thesis and have included copies of such copyright clearances to my appendix. I declare that this is a true copy of my thesis, including any final revisions, as approved by my thesis committee and the Graduate Studies office, and that this thesis has not been submitted for a higher degree to any other University or Institution. iii ABSTRACT This thesis explores the general question of what role can courts play in counteracting the potential capture by professional self-regulating bodies, with a specific focus on competency-based, entry-to-practice standards. This thesis will make the argument that the current competency-based, entry-to-practice standards for Canadian patent agents suffer from several issues which call into question the legitimacy of this occupational licensing intervention. Using the Canadian patent agent profession as a case study, the thesis will consider whether Canadian administrative law can provide a viable mechanism for challenging the illegitimacy of the Canadian patent agent regulatory framework. Accordingly, this thesis project asks the following question- in light of important considerations of both legitimacy and legality in Canadian patent agent governance, can Canadian courts act as an effective counterbalance to potential competency-based, entry-to-practice based capture in Canadian patent agent regulation? The answer to this question extends beyond the context of administrative law. The concept of patent agent ‘competency’ in many ways acts as a foundation for a dominant patent discourse, and challenging patent agent competency may be an important mechanism for challenging this overarching discourse. iv TABLE OF CONTENTS DECLARATION OF ORIGINALITY .............................................................................. iii ABSTRACT ....................................................................................................................... iv LIST OF TABLES ............................................................................................................. ix LIST OF APPENDICES ......................................................................................................x PART 1: PATENT AGENCY- THE PAST, THE PRESENT AND THE FUTURE CHAPTER 1: INTRODUCTION 1.1 Introduction........................................................................................................ 1 1.2 Canadian Patent Agency and Patent Agent Governance .................................. 8 CHAPTER 2: THEORIES OF REGULATION 2.1 Theories of Professional Regulation ................................................................ 14 2.2 Canadian History of Self-Regulation and the Pitfalls of ‘Public Interest’ ...... 18 2.3 Public Choice Theory, Regulatory Capture and Self-Regulation .................... 27 CHAPTER 3: FROM ‘DEMOCRATIZED’ TO ‘PROFESSIONAL’ PATENT AGENCY 3.1 The History of Patent Agent Regulation .......................................................... 38 3.1(i) The Early Patent ‘Agents’ ................................................................ 38 3.1(ii) Towards a Reformed Patent System and Refined Patent Agency ... 43 3.1(iii) The Professional Patent Agent....................................................... 48 3.1(iv) The Internationalization of Patent Agency ..................................... 51 3.2 Defining Patent Agent Competency ................................................................. 55 3.2(i) The Purpose of Patent Agent Regulation ......................................... 55 3.2(ii) Defining Core Competencies ......................................................... 59 3.2(iii) Patent Agent Negligence ............................................................... 61 3.2(iv) Patent Agent Regulation and Patent Quality ................................ 62 3.3 Canadian Patent Agent Regulation – A Case Study in Capture? .................... 65 v 3.3(i) From Pre-Confederation to Regulation (1867-1948) ...................... 65 3.3(ii) From Regulation to the Present (1948-2018) ................................ 68 3.3(iii) Patent Agent Examination - Validation Issues ............................. 71 3.3(iv) Professional Judgement or Institutional Bias? ............................. 74 3.3(v) Epistemic Capture in Canadian Patent Agent Licensing ............... 77 CHAPTER 4: THE FUTURE OF PATENT AGENCY 4.1 The Return of Democratized Invention: Democratized Patent Agency? ......... 81 4.1(i) Professionalization of Patent Agency and the Patent Discourse ..... 81 4.1(ii) Regulation and Access to Services .................................................. 89 4.1(iii) Regulation and an Emerging Patent Discourse ............................ 92 4.1(iv) Technological Disruption, Professional Services and Patent Agency ....................................................................................................... 98 4.1(v) Democratization of Invention, Democratization of Patent Agency and the Patent Discourse ........................................................................ 102 4.2 The (Il)Legitimacy of Patent Agent Regulation ............................................. 107 4.2(i) The Global Patent Discourse and Patent Agent Governance ........ 107 4.2(ii) Canadian Patent Agent Governance – What Challenges Lie Ahead? .................................................................................................................. 110 PART 2: ADMINISTRATIVE LAW, CAPTURE AND PATENT AGENT REGULATION CHAPTER 5: ADMINISTRATIVE LAW - SUBTANTIVE REVIEW AND PROCEDURAL FAIRNESS 5.1 Substantive Review and the Reasonableness of Competency-Based Entry-to- Practice Standards .............................................................................................. 115 5.1(i) Introduction – Reasonableness Dissected ..................................... 115 5.1(ii) Expertise, Legislative Intent and Professional Self-Regulation.... 121 5.1(iii) The Difficulty in Challenging ‘Difficulty’ .................................... 123 vi 5.1(iv) Legislative Interpretation and the Range of Acceptable Solutions .................................................................................................................. 125 5.1(v) Public Interest and Rule-Making Authority .................................. 129 5.2 Analysis of Substantive Review and Reasonableness ................................... 140 5.2(i) Public Choice, Regulatory Capture and Deference ...................... 140 5.2(ii) Public Interest, Competency and Self-Regulatory Authority ........ 143 5.2(iii) Legislative Intent as a Limit on the Range of Acceptable Solutions .................................................................................................................
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