What follows is something that I wrote for the PLI Patent Bar Review Course that I teach with John White. You will find reference to certain things that relate to the PLI Course, such as a reference to using Patware, but most of the suggestions are rather generic and will be useful to those who have not taken the PLI Course.

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The United States Patent Office is now offering the patent bar examination in electronic format, and that means that the way you study for the exam needs to change. In the past test takers were permitted to bring in with them any materials they wanted except for old exam questions (more on this later). The ability to bring practically anything into the examination lead to people tabbing the Manual of Patent Examining Procedures, creating detailed and easy to use outlines, and bringing easy to follow flow charts and tables. Gone are these days, but when you do take the examination you will be provided with an electronic copy of the Manual of Patent Examining Procedures, so at least a part of your study needs to be centered around familiarizing yourself with search techniques and strategies that have a chance of success come exam day.

What follows are a number of tips that should help you cope with the new electronic format.

1. PRACTICE WITH PATWARE

The first and most important tip is to practice under testing conditions. This is a fairly standard standardized testing tip, but now that the patent bar exam is in electronic format it means that you need to practice not only how to pace yourself so you can handle 50 multiple choice questions in 3 hours, but you also must practice taking a computerized examination. The key to practicing to take the computerized examination is to utilize PatWare. PatWare is not only packed with hundreds of exam questions, but PatWare also lets you practice in all areas of the MPEP tested on the exam. Most importantly, the PatWare graphical user interface has been designed to mimic the interface you will encounter come exam day. What this means is that PatWare must be a central component of your post course preparation

2. MAKING NOTES ON QUESTIONS & ANSWERS

In a multiple choice examination that is given in paper format you can easily skip questions you are unsure of, and then come back later to make your selection. You can still do this on the computerized exam, but how you do it is different. When you encounter a difficult question in a paper exam it is common that you will be able to eliminate several of the answer choices, narrowing it down to perhaps 2 or 3 possibilities. You make a notation right on the question page by crossing out several of the answer choices. When you come back to the question you now have a head start, thereby saving time. On an electronic exam, however, you cannot do this. If you are going to want to come back to a question later you are going to have to keep notes on the scrap paper that will be provided. If for, example, you are between A and D for Question 16, you need to make a quick notation on the scrap paper so that when you go back to that question you do not have to start over from scratch. Remember, those that fail usually fail by a question or two, so saving time to look up answers later on is critical. As you practice with PatWare get in the habit of taking notes on questions you want to return to. Of course, your notes need to be quick because the clock is running.

3. PDF SEARCH STRATEGIES 1 - SEARCH BY CHAPTER

The PDF version of the MPEP will only allow you to search within 1 chapter at a time. So, if you are looking for a reference in the MPEP using the search feature you are going to need to know what chapter to search in. Don’t be discouraged by this. By the time you take your exam you should know where all the big ticket items are located in the MPEP anyway. Additionally, you would never want to have the MPEP searchable from start to finish. You will notice, if you haven’t already, that the MPEP is extremely redundant. What this means is that if you were to search from start (page 1) to finish (the last page) for virtually any topic, you would find hundreds of references, most of which are not relevant to your immediate needs. By only allowing chapter by chapter searching the Patent Office is actually doing you a favor. Having said this, you do need to know what each chapter generally contains so you don’t have to waste time figuring out which chapter contains the information you are looking for.

4. FORGET THE INDEX

Having just read the previous tip some will think about just using the MPEP index as a reference tool to finding an answer. This would be a horrible mistake. So that you can get this out of your system now, think of a topic, any topic, and go to the MPEP index. You will almost universally find multiple references to a variety of chapters in the MPEP. If you simply try and follow the trail suggested by the index you will waste valuable minutes, and sadly you likely won’t find what you are looking for anyway. Unfortunately, the MPEP index is not terribly helpful, at least when time is of the essence. For this reason, using the MPEP index should be an option of last resort.

5. LEARNING THE MPEP CHAPTERS

The best way to find things in the MPEP is to simply become familiar with what each chapter covers. The best way to do this, absent reading the entire MPEP, which is not recommended, is to read through the table of contents at the beginning of each chapter. The table of contents for each chapter has very detailed information about what is covered in the chapter. Spend some time familiarizing yourself with the table of contents for each chapter. Also, when you are faced with a look-up-question (i.e., a question that requires knowledge of a specific factoid) first go to the proper chapter in the MPEP and skim through the table of contents. Frequently, one of the sections will jump out at you as being particularly relevant. Go to that section and chances are you will find the answer right there. This would have paid dividends in the past in dealing with look-up-questions on NASA/DOE statements (see MPEP 150) and filing a demand for international preliminary examination (see MPEP 1865).

6. PDF SEARCH STRATEGIES 2 - STRING SEARCH

The search feature that comes incorporated into the PDF version of the MPEP that you will be given is what is called a string search. What this means is that the results returned will come back with matching strings of text. For example, if you type in “patent” the search will find not only the word “patent”, but the word “patentable”. This is because the first six letters of the word “patentable” are “patent”. This may seem like a silly example, and it probably is. Hopefully by exam time you would not need to look up the word “patent” in the MPEP. Nevertheless, you might be tempted to try and look up “RCE”, the short hand reference of a request for continued examination. This might seem reasonable, at least until you realize that the word “commerce” ends with the letters “rce”. Given that the United States Patent Office is a federal agency in the Department of Commerce, you can imagine how often the word “commerce” appears in the MPEP itself. The point is that you want to be familiar with the quirks associated with using the search feature prior to exam day. The only way to become familiar with the quirks, such as the string search, is to spend some time practicing searching during the post course.

7. STUDY OLD EXAM QUESTIONS

It is said, and rightly so, that anyone could get an “A+” on the patent bar exam if given limitless time to answer the questions. This is true because all of the answers and questions come from within the MPEP. You have access to the MPEP during the exam, but because of the length and number of questions you will be lucky to have time to look up more than 5 questions in each section of the exam. Having said this, if you can accelerate your pace without jeopardizing quality review of each question then you might be able to squeeze in another look-up-question or two per section, which could dramatically affect the likelihood that you will pass. The most reliable way to speed up your pace is to do the old exam questions found on PatWare, and study with particular emphasis the 2003 exam questions and answers. Students who have reported back after taking the exam report that up to 15 questions were verbatim repeat questions (i.e., same question, same answer choices, same order of answer choices) from the 2003 exams. In addition, students have reported that up to another 15 questions were verbatim repeat questions from the other exams contained in PatWare. What this means is that you can expect somewhere between 20 and 30 identically repeated questions. These points are there for the taking, and will be obtained by only the most prepared. The morale is to be prepared to capture these easy points.

8. PDF SEARCH STRATEGIES 3 - STRANGE NAMES

Another way to speed up the look-up process is by identifying strange names of inventors or particularly well defined technologies. Now, don’t panic, the exam itself is content neutral with respect to technology. Just because the question starts to mention some specific technology does not mean you need to understand the technology. In all likelihood the question is just giving you background information to create a context, and the question will deal with when you need to file an appeal brief or how long you have to respond to some action of the examiner, or some other equally technology neutral question. Nevertheless, because those who write the questions for this exam sometimes lift questions straight out of the MPEP, without changing the names of the parties or the name of the technology, by putting in an inventor name or the name of a specific invention you might find yourself take to the exact spot in the MPEP where the question writer lifted the question from, which means an easy point for you.

9. READ THE QUESTIONS CAREFULLY

You might think this tip is not unique to tests in electronic format, and you are probably right, at least to some degree. As you have hopefully seen by now, the Patent Office will frequently ask questions in ways that could only be characterized as tricky, perhaps unnecessarily tricky. You will get true/false questions on the exam, which can be asked in one of four different ways - which of the following are: (1) true; (2) not true; (3) false; and (4) not false. Given that the right answer could turn on the presence or absence of a single word, in this case “not”, you need to read the questions very carefully. Similarly, the claim drafting questions will hopefully become among the easiest questions on the exam. The questions you get in these areas will require you to identify which is the bad claim or which is the good claim. In a pressure setting such fine reading can be difficult. Add to this the fact that you are reading on a computer monitor, without a break, for 3 hours at a stretch, and your eyes can begin to play tricks with you. If you are not used to reading text on a computer screen, practice during the post course. It would be a mistake to think that reading questions and answers on a computer screen is no different than reading questions and answers on paper.

10. READ THE ANSWERS CAREFULLY

Maybe not an electronic testing tip per se, but do make sure you read the answer choices prior to selecting your answer. Jumping at the first answer that states a correct proposition could be harmful to your passing the exam. Frequently the right answer to a question on this exam will be “None of the above” or “All of the above” or even multiple choices, such as “A and C”. Selecting the first correct choice you see and moving on might save time, but will not be calculated to help you pass. So, if you are tempted to jump at answer choice A, just scroll down and make sure the answer choice E doesn’t say something like “All of the above”.

11. ANSWERING EACH QUESTION

On the exam you will be given the opportunity to answer a question before moving on, answer a question and “mark it” for later review, or leaving a question blank. Unlike some standardized tests (most famously the SAT) guessing does not count against you on this exam. You need to get 70% correct. If you happen to have a lucky day and get all of them right by guessing you to will become a patent agent or attorney, as the case may be. Of course, guessing on each question is not a strategy for doing anything other than taking the exam again, but guessing is certainly better than leaving a question blank. At least with a guess you have a 1 in 5 shot of getting the question right. Leaving a question blank gives you a 0% chance of getting that question correct. What this means is that you should answer the questions as you go, leaving no questions blank. The nightmare scenario is that you run out of time before you can go back and fill in the blank questions. Given that the exam is electronic you cannot quickly color in A - B - C - D - E in a nice design as you walk up to hand in the paper. When time is up it is up and you need to have your answers selected for each question.

12. MARKING QUESTIONS

As previously mentioned, you can mark questions for later review, assuming you have time at the end of the section. There are a few things that need to be said about marking questions. First, this is only a benefit if you are able to go at a pace that affords you some time left over at the end of each section. You have 180 minutes to do 50 questions in the morning, and a similar time in the afternoon to do another 50 questions. This translates into 3.6 minutes per question, or 3 minutes and 36 seconds. If you take all 3.6 minutes per question then you have no time to check answers or search for the answers to look-up-questions. With this in mind, you should probably practice to move at a pace of 3 minutes per question, which would leave you 30 minutes at the end to search for those critical look-up-question answers. On a related note, if you have marked every other question you will be looking at 25 marked questions with perhaps 30 minutes remaining. That simply makes no strategic sense. For this reason we suggest marking only a handful of questions, namely those questions that are true look-up candidates. If you mark 6 questions, and you go at a pace of 3 minutes per question, that gives you 5 minutes per question to search for the look-up answer. Researching more than 6 questions per section in the MPEP is probably unrealistic.

13. DO NOT LOOK UP UNTIL THE END

While your preference may differ, it has been our experience that students are best served by answering each of the 50 questions to the best of their ability prior to going to the MPEP to look anything up. The reason for this is simply that when one dives into the MPEP it is altogether to easy to lose track of time. In the search for the right answer you may think it makes sense to spend more than 3.6 minutes getting a particular look-up question right. The trouble with this strategy, however, is that there may be even more deserving look-up candidates in later question. Some answers may be easy to find in the MPEP, but if you used up your “look-up time budget” chasing an answer you thought you should know, you are risking giving up easier points later on.

14. GOING BACK AND CHECKING ANSWERS

Of course, by now you have likely been told that you should never change an answer unless you are 100% convinced that you missed something and now know beyond a shadow of a doubt that the new answer you are about to provide is the correct answer. That is probably good advice on this test as well. But there is more to know about the patent bar exam. When you complete the 50 questions in each section you will be prompted to do one of several things. First, you can submit your answers. Second, you can review your questions and answers starting with question 1. Third, you can review your questions starting with the first marked question. Finally, you can review your questions starting with the first blank question. If you have left any blank, start there and make sure you get an answer down for each question. Next, after putting an answer down for each question you should go back and begin looking at the marked questions. Then if time remains you can start looking at the ones you knew cold the first time through, remembering that changing an answer for no particular reason normally is not a good idea.

15. BE PREPARED

While this is an open book exam, the MPEP is like no other book you have ever seen. It is sometimes random and haphazard, it is redundant, and it is exceptionally boring. Nevertheless, the MPEP can be your life line. The biggest mistake that anyone could make is that an open book exam is not terribly difficult. Open book exams are more difficult than closed book exams because the tester can ask more pointed and specific questions than could reasonably be asked in a closed book exam. Familiarity with the MPEP, particularly the searchable PDF, is essential to success.

Through the course, post course and these tips we are trying to provide a path for success on this grueling exam. Our experience suggests that following the path provided leads to exam passage. By this point in time, after many years of education, you probably have a pretty good idea of what works and what doesn’t. So, as you prepare, spend time doing those things that have made you successful in the past, while remembering the substance and process that we have been discussing. Good luck!