IP Regulations - schedule 4
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Suspension of registration of patent and trade mark attorneys
Item  - Patent regulations 20.28A and 20.28B
Item  - Trade Marks regulations 20.14A and 20.14B
The draft regulations introduce a scheme that allows the Designated Manager (currently the Director General of IP Australia) to suspend an attorney's registration. The Designated Manager oversees the registration of patent and trade mark attorneys. The suspension applies when a patent or trade mark attorney is charged with a serious offence. A serious offence involves obtaining property or a financial advantage by deception or fraudulent conduct.
Some stakeholders considered suspension was inappropriate without the courts finding of guilt. Others commented that the definition of 'serious offence' was more limited than similar provisions in the draft Legal Profession National Law.
IP Australia does not intend to omit the suspension scheme. Waiting for a court to decide a criminal trial, before taking any action against the attorney, may not be inappropriate for some types of offences. But there are acute risks to clients when an attorney is charged with dishonest or fraudulent conduct. When this occurs, the risks to clients need to be given greater weight.
The process has a number of built-in safeguards. They include provision for the attorney to show cause for lifting the suspension and the ability to appeal the decision to the Administrative Appeals Tribunal.
Some provisions under this schedule will require clarification. One of them relates to regulation 20A.3 and whether this regulation gives implied power to the Designated Manager to audit companies to ensure that professional indemnity insurance is maintained. Some typographical errors will be corrected. IP Australia will refer these matters to legislative drafters.
Last Updated: 18/1/2013