Intellectual Property (Standards of Practice) Instrument 2013 (No. 1)

Administered by Department of Industry, Science and Resources

Legislation au F2013L00635 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Patents Act 1990 and Trade Marks Act 1995

 

Code of Conduct for Patent and Trade Marks Attorneys

 

The primary purpose of the Code of Conduct for Patent and Trade Marks Attorneys (‘the Code’) is to explain to patent and trade marks attorneys the standards of professional conduct that they are expected to meet. A secondary purpose of the Code is to provide the Professional Standards Board for Patent and Trade Marks Attorneys (the Board) with a benchmark by which the professional conduct of registered patent and trade marks attorneys may be assessed.

 

The Code supersedes the previous Code of Conduct for Patent and Trade Marks Attorneys (‘the 2008 Code’), which was incorporated into the Patents Regulations 1991 by reference to it in regulation 20.32 of those regulations, with effect from 1 July 2008 to 14 April 2013.

 

The provisions of the Code are exactly the same as those of the 2008 Code, but are now established as a Legislative Instrument and published in the Federal Register of Legislative Instruments. This ensures that an authoritative text of the provisions can be accessed on the Australian Government’s ComLaw website.

 

The Code is an interim measure pending a review of its provisions, following the changes made by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 and the Intellectual Property Legislation Amendment (Raising the Bar) Regulation 2013 (No. 1). A revised Code of Conduct reflecting these changes is expected to be made later in 2013, following public consultation on a revised draft code.

 

No new consultation is considered necessary on the Code, because it merely restates the longstanding provisions of the 2008 Code which has been in use by the profession (and publicly available on the Board’s website) since July 2008.

 

The Office of Best Practice Regulation in the Department of Finance and Deregulation has advised that no Regulation Impact Statement is required to be prepared for this Code.

 

The Code commences on 15 April 2013.

 

Explanatory notes on selected aspects of the Code are set out in Attachment A.

 

A Statement of Compatibility under subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 is provided as Attachment B.

 


Attachment A: Details of the Code of Conduct for

Patent and Trade Marks Attorneys 2008

 

 

Operation of the Code as Legislative Instrument

 

The 2008 Code has been employed by the attorney profession and the Professional Standards Board since 2008. From 1 July 2008 to 14 April 2013, the 2008 code has been incorporated into the Patents Regulations 1991 by reference to it in regulation 20.32 of those regulations. It is intended that when made a Legislative Instrument, the Code will continue to operate in the same way as it did in its previous form. Comments on selected sections of the Code are included below.

 

1. Background

 

The Code’s Background sets out basic information regarding the Code.

 

2. Objectives of the Code

 

The Objectives of the Code allude to the need for fair and equitable dealings between attorneys and clients, including IP Australia (the Patents, Trade marks, Designs and Plant Breeder’s Rights Office).

 

3. The Code of Conduct

 

The body of the Code is set out in The Code of Conduct and provides specific guidance (with selected details explained, below).

 

3.1 Preamble

 

The Code applies to all registered patent and/or trade marks attorneys.

 

3.2 Code

 

Past precedents set by the Board, along with all relevant Tribunal decisions, are intended to continue in effect.

 

5. Complaints against an attorney

 

5.4 Complaints and discipline

 

Contact details for the Board’s Secretary remain the same.

 

6. Administration of this code

 

6.1.iii Copies of this Code of Conduct

 

Contact details for the Board’s Secretary remain the same.

 

Attachment B: Statement of Compatibility

with Human Rights

 

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Code of Conduct for Patent and Trade Marks Attorneys

 

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Legislative Instrument

 

The Code of Conduct for Patent and Trade Marks Attorneys (the Code) is a Legislative Instrument governing the standards of practice for patent attorneys, trade marks attorneys, and patent and trade marks attorneys (the attorneys).

 

The Code applies to:

 

- individual registered attorneys including those employed in companies               undertaking the business of the company;

- registered incorporated attorneys;

- attorney directors of registered incorporated attorneys; and

- associated persons who perform work for the registered individual or  incorporated attorneys.

 

The intention of the Code is to provide a framework of professional conduct required of attorneys in dealing with their clients, other professional service providers, and IP Australia (the government agency incorporating the Patent, Trade Marks, Designs and Plant Breeder’s Rights Office).

 

The Code further assists by providing a standard of acceptable conduct that can be used in the settling of disputes, and to assist clients of registered attorneys and others dealing with the professions to understand the obligations of attorneys to their clients, IP Australia and each other. The Code also sets out how information can be provided to the Professional Standards Board for Patent and Trade Marks Attorneys (the Board) to enable the Board to investigate the conduct of an attorney.

 

The Code supersedes the previous Code of Conduct for Patent and Trade Marks Attorneys (‘the 2008 Code’), which was incorporated into the Patents Regulations 1991 by reference to it in regulation 20.32 of those regulations, with effect from 1 July 2008 to 14 April 2013.

 

The provisions of the Code are exactly the same as those of the 2008 Code, but are now established as a Legislative Instrument and published in the Federal Register of Legislative Instruments. This ensures that an authoritative text of the provisions can be accessed on the Australian Government’s ComLaw website.

 

The Code is an interim measure pending a review of its provisions, following the changes made by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 and the Intellectual Property Legislation Amendment (Raising the Bar) Regulation 2013 (No. 1). A revised Code of Conduct reflecting these changes is expected to be made later in 2013.

 

Human rights implications

 

This Legislative Instrument does not engage any of the applicable rights or freedoms.

 

Conclusion

 

This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.

 

 

The Professional Standards Board for Patent and Trade Marks Attorneys

Overview

The Code of Conduct for Patent and Trade Marks Attorneys was enacted in 2013 as a Legislative Instrument under the Patents Act 1990 and the Trade Marks Act 1995. It serves to outline the standards of professional conduct expected of patent and trade marks attorneys, ensuring fair and equitable dealings between attorneys, clients, and IP Australia. The Code supersedes the previous Code of Conduct for Patent and Trade Marks Attorneys, which was in effect from 1 July 2008 to 14 April 2013, and it was established to provide a benchmark for the Professional Standards Board to assess the conduct of registered attorneys. By becoming a Legislative Instrument, the Code is now published in the Federal Register of Legislative Instruments and is accessible on the Australian Government’s ComLaw website. The Code is currently an interim measure pending a review and update following changes introduced by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 and the Intellectual Property Legislation Amendment (Raising the Bar) Regulation 2013 (No. 1). A revised Code is expected to be released later in 2013 after public consultation on a draft version. This Legislative Instrument has been deemed compatible with human rights, as it does not engage any of the applicable rights or freedoms.

Scope and Application

The Code of Conduct for Patent and Trade Marks Attorneys, now established as a Legislative Instrument and published in the Federal Register of Legislative Instruments, applies to all registered patent and trade marks attorneys, including individual attorneys, registered incorporated attorneys, attorney directors of incorporated attorneys, and associated persons who perform work for these attorneys. The Code governs the professional standards and conduct expected from attorneys in their dealings with clients, other professional service providers, and IP Australia, the government agency responsible for patents, trademarks, designs, and plant breeder's rights. The Code serves to provide clarity and guidance on acceptable professional conduct, assist in dispute resolution, and offer transparency to clients and other stakeholders regarding the obligations of attorneys. As an interim measure, the Code is identical to the 2008 Code, which was incorporated into the Patents Regulations 1991 from July 2008 to April 2013, but it now benefits from the authoritative publication on the Australian Government’s ComLaw website. The Code is subject to a review and is expected to be revised later in 2013 to reflect changes made by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 and associated regulations.

Key Provisions

The Code of Conduct for Patent and Trade Marks Attorneys, as established under the Patents Act 1990 and the Trade Marks Act 1995, sets out the standards of professional conduct expected from patent and trade marks attorneys (sections 1-6). This legislative instrument applies to individual registered attorneys, registered incorporated attorneys, attorney directors of incorporated attorneys, and associated persons who perform work for these registered attorneys (section 3). The primary objective of the Code is to ensure fair and equitable dealings between attorneys and their clients, including IP Australia (section 2). Additionally, the Code serves as a benchmark for the Professional Standards Board to assess the professional conduct of attorneys (section 5). Registered patent and trade marks attorneys must adhere to the standards outlined in the Code, ensuring they maintain professional integrity, competence, and confidentiality in their dealings with clients and other service providers (sections 3-5). Attorneys are expected to act in the best interests of their clients, provide competent and diligent services, and avoid conflicts of interest. Furthermore, the Code mandates that attorneys communicate effectively with clients and IP Australia, providing accurate and timely information regarding their professional services (sections 3-5). Attorneys must also maintain records and documentation that comply with the Code’s requirements, ensuring transparency and accountability in their professional activities (section 6). Violations of the Code of Conduct may result in disciplinary action by the Professional Standards Board, including reprimands, fines, suspension, or revocation of an attorney’s registration (section 5). Attorneys found guilty of serious misconduct or breaches of ethical standards may face more severe penalties, including substantial fines and permanent revocation of their registration. Additionally, attorneys who engage in fraudulent or dishonest practices may be subject to criminal charges, leading to fines or imprisonment (section 5). The Code provides a clear framework for addressing breaches of professional conduct, ensuring that attorneys maintain the highest standards of integrity and competence in their practice.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.