The Office of Enrollment and Discipline (OED) of the United States Patent and Trademark Office (USPTO), has announced that the patent bar examination, which is sometimes called the patent registration exam or patent agent’s exam, will be updated again effective early April 2013. No date certain has yet been announced by the OED, but based on the previous updating of the exam when new rules became effective on September 16, 2012, it can be expected that the patent bar exam will be updated sometime during the first week of April.
This next patent bar exam update will be extremely significant for those who will be taking the exam after it has been updated. OED explains that the next update of the patent bar will usher in the testing of the final phase of implementation of the America Invents Act (AIA), which will become effective March 16, 2013. “All aspects of the AIA have now made their way onto the USPTO Exam,” says John White, creator of the PLI patent bar review course and an attorney with Berenato & White.
Indeed, the so-called first-to-file rules are the final element of the AIA to be implemented and could lead to an examination that is up to one-third new material. How is this possible? First-to-file rules and law changes the 35 U.S.C. 102 in a fundamental way. This means that the very definition of what is prior art will change. That has implications for novelty directly and non-obviousness indirectly.
With so many questions dealing with prior art and responding to rejections the updated exam can be expected to be harder, perhaps much harder. “It will take a few months to see what effect, if any, this has on pass rates and topic distribution,” White says. In my experience teaching both the patent bar review course and at various law schools, whenever new material is introduced that has not been previously tested familiarity is much lower, which results in lower exam scores. Similarly, when the volume of information rises lower exam scores are naturally to be expected. Thus, while we won’t know for certain what impact this update will have the prudent exam taker will assume that the patent registration exam will get harder and more time will be required to study.
There will also be much more material to learn because first-to-file does not supplant the need to know and understand first-to-invent rules. Any application filed on or before March 15, 2013, will be governed under first-to-invent principles, while applications filed on or after March 16, 2013, will be governed by first-to-file principles. That will make the patent exam something of a history test because the Patent Office is expected to continue to test both regimes given that both regimes will be relevant for practitioners for the foreseeable future.
What guidance does OED specifically provide? The OED website explains:
The United States Patent and Trademark Office will be updating the content of the registration examination in early April 2013. The updated examination will include provisions of the Leahy-Smith America Invents Act (AIA) that will take effect March 16, 2013. Specifically, the updated examination will additionally cover the following topics: Derivation Proceedings and First-Inventor-to-File.
One thing that will make this latest update difficult for test takers is that the final rules to implement first-to-file rules have not yet been promulgated by the USPTO. The USPTO has until 30 days before implementation to promulgate the final rules, which means they may not be made public until on or about February 14, 2013. That leaves only 6 to 7 weeks before the exam updates. Luckily, when the USPTO updates the patent bar exam history suggests that the new questions are relatively easy for a while. The question is how long? Based on what we heard from test takers after recent updates you can expect 2 to 3 weeks before questions on new material start to get more difficult.
For those who would like to race to take and pass the exam prior to the newly testable first-to-file material coming on line, John White and I will be teaching a live Patent Bar Review Course in San Francisco, California, from February 13-17, 2013. This is the last live course that we will offer aimed at teaching students who hope to take the current iteration of the patent bar exam. If you cannot make the live San Francisco course in February, the homestudy course will be available and has been used by many students to successfully pass the patent bar exam.
If you are going to come to the San Francisco course in hopes of taking the exam prior to the change you should send your application as soon as possible and then schedule your examination date upon receiving an admission ticket to take the exam.
Our next live course will be in Chicago, Illinois, from March 13-17, 2013. At that location we will begin teaching first-to-file in anticipation of students taking the exam once the update has occurred.
Stay tuned for more news on the patent bar exam as it becomes available.
If you are interested in taking the patent bar exam please see the General Requirements Bulletin from the USPTO. I have also collected all the information you need to know about the Patent Bar Exam and preparing for the examination in the links below. For more information on the patent bar exam please see:
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