In order to represent clients before the U.S. Patent Office it is necessary to take and pass the Patent Bar Examination. In order to be registered to practice before the Office the individual seeking registration must: (1) Apply to the USPTO Director in writing by completing an application for registration form supplied by the OED Director and furnishing all requested information and material; and (2) Establish to the satisfaction of the OED Director that the applicant possesses good moral character and reputation and the requisite scientific qualifications and competence to advise and assist patent applicants in the presentation and prosecution of their applications before the Office.
In recent years the registration exam to practice before the United States Patent and Trademark Office has undergone significant change. For example, effective April 12, 2011, the patent bar examination was updated to test MPEP 8th edition revision 8, as well as KSR v. Teleflex, Bilski v. Kappos and the 112 Guidelines. This update in testable material brought the patent bar exam current through Winter of 2011.
Effective January 2012, the USPTO updated the patent registration examination to cover two new rules issued September 26, 2011 that relate to the Leahy-Smith America Invents Act. These new rules permit prioritized examination of patent applications (Track I) and revise the standard for granting inter partes reexamination requests. Additionally, the patent registration examination was also at this time updated to include questions concerning the November 22, 2011 rules governing practice in ex parte appeals before the Board of Patent Appeals and Interferences.
Effective October 2, 2013, the USPTO updated the patent bar exam adding a significant volume of newly testable material to the Office’s Registration Exam. Specifically, the USPTO has added six new testable documents to the Patent Bar Exam, with these newly testable documents coming in the form of six Federal Register Notices. All of this is thanks to the America Invents Act (AIA). See AIA Phase 2 Implemented.
Effective April 2013, the USPTO updated the patent bar exam 3 to cover virtually all aspects of the America Invents Act (AIA), most specifically starting to test the so-called “phase 3” implementation of the AIA, which related to changes to make U.S. patent laws first-inventor-to-file.
There will be yet another update to the USPTO registration exam at the end of January 2014. The updated examination will additionally cover: (1) First-Inventor-to-File Final Rules; (2) Patent Law Treaties Implementation Act of 2012; and (3) Changes to Representation of Others Before the USPTO Final Rules.
Thus, the exam that will be given beginning on or about January 21, 2014, will be substantially different than the examination given at the beginning of April 2011. For that reason, relying on old study materials to pass the exam is not at all wise. Those trying to pass using outdated study materials are running an extraordinarily high risk of failing the exam. Compounding this problem is the fact that the Patent Office has not released exam questions since 2003. With 11 years of significant changes in the law since the last release of exam questions, taking a patent bar review course is more important than ever.
For many years now the patent bar exam has been a fully multiple choice, fully computerized examination. The exam is made up of 100 questions. You will be given 3 hours to complete the first 50 questions and another 3 hours to complete the second 50 questions.
In terms of exam administration, the patent bar exam is delivered via computer and upon receiving an exam registration ticket you must schedule the exam during a 90 day window. You take the exam at a Prometrics testing facility, and there many hundreds of facilities across the United States.
At the end of each 3 hour segment answers will be submitted so it will not be possible to return to the first 50 questions during the second 3 hour segment. It is also important to realize that when time expires the computer will automatically submit the answers whether or not you have selected an answer choice for each question. Therefore, it is extremely important to pace yourself and be sure that you answer every question, even if you only guess. To help you develop strategies to succeed with this time sensitive exam please see MPEP Search Strategies and 10 Patent Bar Exam Strategy Tips.
Unlike certain other standardized tests there is no penalty for guessing. You merely need to get 70% on the exam, so if you can guess your way to that threshold you will pass. This 70% score to pass does not exactly translate into needing 70 correct out of the 100 questions asked. This is because everyone who takes the exam is given 10 beta questions that do not count toward the overall score. So you really need to get 70% out of the 90 questions that count, or 63 out of 90. There is no way to tell which questions are beta questions though, so you should not assume any question is a beta question that can be skipped. The purpose of these beta questions is presumable to allow the Patent Office to add questions and test them to see if they are good questions prior to adding them to the permanent database of questions that count toward achieving the 70% required.
While you can indeed guess without penalty you should not, however, anticipate being able to guess your way to passing this exam. The Patent Bar Exam is an extremely difficult exam and the pass rate has historically been about 50%, although from time to time in the past certain iterations of the exam would have pass rates as low at 25%. Because there are a number of review courses you can imagine that those taking this exam on their own without any guidance are likely to fail. Indeed, the PLI patent bar review course I teach has a first time pass rate close to 90%, and we teach more students each year than any other course. Add onto this the fact that those who qualify to sit for the exam are engineers and scientists, who are a group not typically known for such widespread failure, and you can get a sense for just how difficult this exam is to pass. Taking the exam without some assistance and expecting to pass is not generally a winning strategy.
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:
- Solutions for Promoting Patent Practitioner Diversity at the USPTO in the Battle Against Systemic Racism
- USPTO’s Drew Hirshfeld on Proposed Changes to Requirements for Patent Bar Registration: It ‘Just Makes Sense’
- Time to ‘Think PCT’: Rethink Your Global Patent Strategy to Preserve Your Seat at the Table
- USPTO to Update Patent Bar Exam in August 2018
- Reflections of the Patent Bar Exam
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- Everything You Need to Know About the Patent Bar Exam
- Patent Bar Exam: MPEP Search Strategies
- Beware Patent Bar Exam Study Advice
- USPTO to Update Patent Registration Exam April 2013
- Patent Bar Blues: New Rules, Old MPEP Make for Difficult Study
- The Latest Intelligence on the Updated Patent Bar Exam
- USPTO Updates Registration Examination for New Patent Practitioners
- Patent Bar Exam Refresh: PTO Now Testing New Materials
- USPTO Changes Format and Links to MPEP
- Legal Jobs: Patent Job Market Shows Signs of Improvement
- Becoming Patent Bar Eligible: What Courses are Acceptable?
- Buyer Beware! Counterfeit Patent Bar Review Courses on eBay
- Vote for Chance to Win FREE PLI Patent Bar Review Course
- PTO Updates Patent Bar Exam to Test AIA & Appeal Rules
- Patent Reform and Patent Bar Review, What You Should Know
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- New Look Patent Bar Examination Continues to Evolve
- Top 10 Reasons to Take the PLI Patent Bar Review Course
- USPTO Updates Registration Exam for Patent Practitioners
- USPTO Announces Impending Update to Patent Bar Exam
- PLI Patent Bar Review Summer Tour 2010
- PLI Patent Bar Review New Live Course at Santa Clara May 24-28
- USPTO Announces Live Administered Exam Schedule for 2010
- PLI Patent Bar Review Spring/Summer Tour 2010
- What a Soon to be Patent Agent Learned from Googling Himself
- Does My Degree Qualify Me to Take the Patent Bar?