UPDATED December 27, 2013
In order to represent clients before the United States Patent and Trademark Office it is necessary to take and pass the Patent Bar Examination.
I am frequently asked by students and aspiring patent attorneys or patent agents whether they really need to take a patent bar review course, or whether they can simply forgo taking a course and study on their own and pass the patent bar exam. The short answer is that if you want to have any realistic opportunity to pass the patent bar exam you really should be taking a patent bar review course to assist with your preparation.
Changes to the Patent Bar Exam
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 in January 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.
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Which course should you take?
Merely deciding to take a patent bar review course is, unfortunately, not enough. For better or worse, not all patent bar review courses are created equally. It is important to choose a course that will give you the best opportunity to pass the first time. The patent bar exam is a very difficult examination, so the goal is to pass the first time and then never look back.
The next thing you need to consider is that the pass rate for this examination has historically been between 50% to 60%. Somewhat alarming for test takers, however, is that during 2013 the pass rate dipped to 46%, which is the lowest pass rate over the last decade. See USPTO Exam Results. This is not surprising given the fact that since April 2011 massive amounts of new information has become testable, while comparatively little information has become obsolete. This means there is a much wider pool of information that must be known in order to pass the Patent Bar Exam, which means that the test has gotten more difficult.
Now factor into your consideration the reality that those who can take the examination are largely scientists and engineers, many with Masters Degrees or PhDs. Indeed, in order to qualify to take the exam you need to have either a scientific degree in a hard science or field of engineering, or have accumulated enough credits in science or engineering courses to demonstrate to the Patent Office that you have the technical expertise necessary to render meaningful technology based assistance to inventors who are seeking to patent their innovations. See Who Can Take the Patent Bar? Those who qualify to take this examination are highly successful individuals who have rarely, if ever, failed an exam in their life, yet the pass rate in 2013 was 47%. This is telling. Even with a pool of applicants who have historically achieved at a very high level the prospects of passing the exam are at best only 50-50, and that includes the many who have taken one or another patent bar review course in preparation for the exam.
Finally, you need to know a little about the pass rates for those who take patent bar review courses. I have taught for years for the PLI Patent Bar Review Course, the premiere patent bar review course available today, and this course typically teaches close to one-half of all those who take the exam on a yearly basis. The pass rate for those who take the live version of this course is generally around 89% and the pass rate for those who take the home study version is roughly 87%, with both percentages reflecting first time takers. I have personally never spoken to anyone who has taken the course and did not ultimately pass the exam, so eventually everyone who takes this course passes. This particular course has become largely a home study course, with about 60% of those taking the course purchasing the home study version and not attending live lectures. So that roughly translates into a first time pass rate of about 88%. So if half of the people taking the examination take this course and pass the first time at a rate of 88%, what does that mean for those who do not take the course given that the historically low pass rate?
Before you can truly answer that question you need to further realize that there are a number of other patent bar review courses, all of which provide some level of preparation that is undoubtedly better than no professional preparation. If you have the requisite scientific background to take the exam you undoubtedly realize that this means that the pass rate of those not taking a patent bar review course is extremely low. Even if you assume that the course I teach for is the only game in town, which is not accurate, the numbers would suggest a pass rate for those who do not take a patent bar review course at about 15%. Given that we know there are other courses that presumably offer a pass rate higher than what could be accomplished on your own without any assistance, it seems logically certain that those who take the exam without some kind of professional patent bar review course have little or no realistic chance to pass the exam.
How is this possible? Is the exam really that difficult? The answer is YES! The patent bar exam is a tremendously difficult exam. You will be tested on the contents of the Manual of Patent Examining Procedures, which is a book roughly the size of a telephone book for a major metropolitan area. Complicating matters is the reality that there are presently about 10 additional PDF documents in the form of Federal Register Notices that are also testable, but not included in the MPEP. Furthermore, some of the chapters of the MPEP are not up to date and if you use them to answer a question on exam day you will get the wrong answer. See New Rules, Old MPEP Make for Difficult Study.
What a review course can and does do, particularly the PLI course, is help you focus on those concepts most heavily tested and understand how to work through questions, manage time and develop strategies that will help you get answers to several questions that you have absolutely no clue about. So if you had an ulimited amount of time to take the exam, and an unlimited amount of time to prepare for the exam, you could do it yourself. Unfortunately, neither assumption is realistic. That is why patent bar review courses have developed to streamline your study, focus you on the topics that are most important, and give you the edge necessary to make taking the exam a one time affair. That is why spending the money for a competent review course is likely going to be one of the most wise choices you can make on your journey toward becoming a patent attorney or patent agent.
For more information on the patent bar exam please see: