We just wrapped up our last live Patent Bar Review Course for 2012.  We were in San Francisco for the past few days, once again teaching a room of would-be patent attorneys and patent agents.  This group now has the task of studying the Phase 2 implementation of the America Inventors Act, which went into effect on September 16, 2012 and started to be tested on October 2, 2012.

In the little more than a month since AIA Phase 2 became testable we have already heard from a number of our Patent Bar students who have taken the Patent Exam since the USPTO added AIA Phase 2 to it. The good news — in addition to our usual exemplary pass rate — is that the sample questions we prepared for all the supplementary materials, from KSR and Bilski all the way through AIA Phases 1 and 2, are very, very predictive of the questions you’ll see on the actual Exam. Student after student has told us that if you can handle the questions we have added to Patware (the “AIA Phase 2 Mini-Exam” was just recently added), you can handle all the questions the USPTO will ask you on the Exam.

As you may have already heard, effective — October 2, 2012 — the United States Patent and Trademark Office will be adding a significant volume of newly testable material  to the Office’s Registration Exam (i.e., the “Patent Bar 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.

Does this mean that the Patent Bar will become more difficult? The answer to that question isn’t a simply YES or NO.  So let’s break this down into two different questions.  (1) Will the questions be more difficult on the Patent Bar Exam? (2) Will it be more difficult to pass the Patent Bar Exam? While exam questions likely won’t get more difficult, it would be naive to believe the Patent Bar will not become much more difficult with the addition of complicated new rules that only add to the legal and regulatory rules administered by the USPTO.

Let’s go back to the first question about the questions on the Patent Bar.  Once upon a time the Patent Office administered the Patent Bar Exam once or twice a year to thousands of would-be patent attorneys and patent agents across the country.  The October 2003 exam was the last exam administered in this way.  The USPTO changed the examination to an on-demand examination that is prepared by the Patent Office, but administered by Prometric.  Because questions are randomly served from the database and no two people take the same exam the Patent Office had to normalize exam difficult someway, so they scored questions on a scale of 1 to 10 in terms of difficulty.  This ensures that each person gets an exam that the Patent Office deems to be of the same level of difficulty.  Thus, the new material will be fit into the database and appropriately evaluated.  There will not suddenly be questions of 11 or 12 level of difficulty. So in this respect each question will not be more difficult, at least from the Patent Office perspective.

Jagshemash!

Recently, I was working on a patent search requiring me to look in areas of patent art relating to male underclothing (a very popular area for patenting, as you may guess) when I came across this little number: US Patent Application 12/071,878, which is titled “Scrotal Support Garment.”  The primary illustration is shown to the left.

Look familiar? Yes, with the exception of adjustable straps, this is the Borat Swimsuit, the swimwear made famous by comedian Sasha Baron Cohen, a.k.a., Borat in the 2006 film Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan. If you remember the movie (and how could you forget?), Borat wore this swimsuit in one very short scene at the top of the film. That short scene set the tone for the craziness that was Borat’s world.

As you may have seen, IPWatchdog.com has been named to the ABA Blawg 100, which recognizes the top 100 blogs on the Internet written by lawyers for lawyers.  This marks the third year in a row we have been honored by the American Bar Association Journal as a top 100 blog.

Now the voting begins. Last year we were voted the top IP Law blog and greatly appreciate the support we received.  Once again this year we are in the same category — IP Law — as is Professor Dennis Crouch’s widely popular PatentlyO blog.  If you are inclined to vote for us we would once again greatly appreciate your support.

Over the years IPWatchdog.com has continued to try and add additional perspectives from a wide variety of guest contributors, ranging from well respected practicing attorneys and agents to high profile academics to inventors and pro-patent lobbyists. It is hard to imagine providing such depth of analysis on such an array of topics without having truly wonderful guest authors.  So we take this moment to say a very special thank you and to shine the spotlight on them. Each deserve to share in any recognition of IPWatchdog.com.  While I am loathe to single any guests out I would be remiss if I didn’t separately thank both Beth Hutchens (10 contributions) and Eric Guttag (9 contributions)!

Without further ado, here are the guest contributors in alphabetical order, along with their contributions for 2011.

No doubt you have heard about the new law that is upon us in the land of patents; it’s in all the papers and on all the blogs.  The America Invents Act was signed by President Obama on September 16, 2011, and marks the largest single re-write of U.S. patent law ever.  Even the 1952 Patent Act pales in comparison because that was almost completely a codification of existing case law that had developed over the decades.  America Invents, however, embarks upon a new path and leads us into the great unknown in many respects.

Those preparing to take the patent bar exam or contemplating sitting for the exam at some point in time in the future likely don’t want to hear that U.S. patent law is heading into the great unknown.  How can you be expected to take a pass the patent bar examination under these circumstances?  First: Relax. You do not have to unlearn or forget what you are currently learning, or soon will learn, for the patent exam or for your practice life after you pass the exam.  That being said, the sooner you do take the patent bar exam the better off you will be!

This morning I am sitting in the back of the conference room at PLI headquarters inNew York City.  Today is day 1 of the PLI patent bar review course.  John White is at the podium and going through some preliminary matters, eliciting appropriate laughter at times from the audience.  Everything is fine and fun at this early morning hour, but that will soon change.  After this preliminary segment we will roll up our sleeves and begin to charge through the rules and procedures that govern practice before the Patent Office.  Don’t get me wrong, I do honestly believe this course is a great course, and our pass rate is extremely high, but at the start of every new class I wonder how in the name of all that is holy will we be able to make sense for these patent newbies of what has become a hopeless mess of regulatory chaos.  The America Invents Act will only make matter worse, but that is another story for another day.

Thinking about what lies in front of these students is mind numbing.  Even more mind numbing is that every year there are many individuals who will attempt to pass the patent bar examination without even taking any review course.  What are these people thinking?  Obviously, they are thinking that if they could get through a science degree surely they can get through 1 multiple guess exam.  Those who have taken the exam know the danger inherent in this thinking, but how could it be possible that the rules of practice at the Patent Office have become so ridiculous and counter-intuitive?  In fact, as I have told the several thousands of students I have taught over the years, the more ridiculous and counter-intuitive the more likely it will be on the exam!  Scary, huh?

Occasionally, when we’re on the road, Gene and I take up the chance to speak at law and corporate clients of either of us or PLI. These talks can be free ranging, sometimes CLE, sometimes just patent focused topics of interest. Recently we gave a talk in Chicago on the likely and looming patent reform to a group of practitioners; the only question when we wrapped: is it too late?

For reasons that are not very clear, patent practitioners have been largely mute in the reform debate. Maybe we thought it would never happen, or maybe we thought it would never include some of the crazy ideas and language that was being bandied about. Oops. Wrong on both counts. So, now what?

Whenever a company name is splashed through the headlines regarding some big deal, unsolicited advice is never far behind. Cocktail party chatter and water-cooler insight all include some sage observation. I cannot resist, even if I am a little late to the party.

Firstly, well done. Buying Motorola Mobility was an excellent move. No one ever said Google (NASDAQ: GOOG) had to be a pure play on or in anything in particular. If it wants to integrate laterally/vertically, good. Google is well funded and can leverage Motorola know-how into many spaces. Next up, HPs moribund computer biz.

John White has taught over 50% of the patent bar how to pass the exam.

And now a message from the shameless commerce division, brought to you by the #1 Patent Bar Review Course in the Nation — the PLI Patent Bar Review Course.  PLI is the major sponsor of IPWatchdog.com and this patent bar review course is the one I have taught for the past 11 years.

Our busy Summer Tour 2011 kicked off in New York City on May 11, 2011.  Our next stop will be San Francisco, California from June 22-26, 2011.  But for the moment John White and I are presently in New York City teaching aspiring patent attorneys and patent agents how to pass the newly revamped patent bar examination.  The test has been revised by the United States Patent and Trademark Office effective April 12, 2011, and now tests Edition 8, Revision 8 of the Manual of Patent Examining Procedures, better known as the MPEP.  In addition to testing the most current revision of the MPEP, the test also integrates the Bilski Guidelines, the KSR Guidelines and the very new 112 Guidelines, all of which are yet to officially make it into a version of the MPEP.  John and I have created all new materials and have completely revised the course, making it better than ever.

The United States Patent and Trademark Office has updated the patent bar exam, sometimes referred to as the patent registration examination.  Effective April 12, 2011, the patent bar examination now tests MPEP 8th Edition Revision 8, as well as critically important guidelines, such as the KSR, Bilski and 112 guidelines, not yet a part of any edition of the MPEP.  See USPTO Updates Registration Examination.  I have been teaching the PLI Patent Bar Review Course for over 10 years now, and along with John White (the original course creator) participated in revising our materials, lectures and questions to bring the course up to date with the latest edition of the exam now being offered.  I continue to believe the PLI Patent Bar Review Course is the best course out there, and I have put together the following Top 10 reasons to take our Review Course.

By the way, don’t forget, if you mention “IPWatchdog” you save 10%.  To get the IPWatchdog discount call 888.296.5973.

Sharon Barner

Sharon Barner served as the Deputy Under Secretary of Commerce for Intellectual Property and the Deputy Director of the United States Patent and Trademark Office for approximately 15 months, being appointed on October 2, 2009 and resigning effective January 14, 2011.

While at the USPTO Barner commuted back to Chicago on weekends to visit her family, choosing not to uproot her children from their schools. Since leaving the Patent and Trademark Office she has returned to Chicago and to Foley & Lardner. Barner was the keynote speaker at the 5th Annual Patent Law Institute sponsored by the Practising Law Instituted. I caught up with her in San Francisco at the Patent Law Institute on March 21, 2011. What follows is the transcript of my interview with her.

Gene and I are true believers in the PTO and its mission. What this means, for me anyway, is that the PTO is given the benefit of the doubt for whatever it is they are attempting. I do not presume ill motives. We are mindful, however, that not everything is perfect about the PTO. Some rules and the implacable enforcement thereof, drive any sane practitioner to the edge. But, at the moment, the trends are favorable.

One ongoing trend, however, that defies resolution is what I call the PTO Paradox, which describes the nearly unbelievable scenario whereby the U.S. innovation agency (i.e., the PTO) is well behind the curve when it comes to technology solutions that can and do streamline massive, document intense review activities.

It has been an interesting year for us at IPWatchdog.com, from getting sued in January 2010, to exclusive interviews with the likes of Chief Judge Randall Rader, Chief Judge Paul Michel, Former U.S. Senator Birch Bayh, USPTO Director David Kappos and former USPTO Directors Todd Dickinson and Nick Godici and others, we have stayed busy. We have put more emphasis this year on reporting live from industry news events, such as from the BIO 2010 International Convention and the AIPLA Annual Meeting.  Of course, the familiar opinion commentary that I so love to write has also been a mainstay.

The big news for us is just coming in as of today. I am pleased to announce that IPWatchdog.com was selected by the readers of the ABA Journal as their favorite IP Law blog for 2010. See ABA Journal Blawg 100 IP Law category for 2010.  I am also pleased to announce that for 2010 we had over 2,000,000 visits, delivered nearly 11.8 million pages, our homepage was viewed 3.06 million times and we averaged over 67,000 unique monthly visitors!  Thanks to all our readers for coming back day after day, and thanks to all of our Guest Contributors!

Senator Birch Bayh speaks at the USPTO on December 9, 2010

Today marks the 30th Anniversary of the most forward thinking patent legislation since Thomas Jefferson wrote the Patent Act in 1790, which was the third Act of Congress. Truthfully, the Bayh-Dole legislation is likely more forward thinking and inspired than even Jefferson’s work, given that the patent law written by Jefferson was merely an attempt to codify and improve upon the patent regime of Great Britain. The Bayh-Dole Act, which was enacted on December 12, 1980, was revolutionary in its outside-the-box thinking, creating an entirely new way to conceptualize the innovation to marketplace cycle.  It has lead to the creation of 7,000 new businesses based on the research conducted at U.S. universities. As a direct result of the passage of Bayh-Dole countless technologies have been developed, including life saving cures and treatments for a variety of diseases and afflictions.

Eventually we are going to have a decision from the Supreme Court in Bilski v. Kappos, or we will know that the case will be held over until the next term of the Court, which beings in October 2010. The current Supreme Court term comes to an end on June 28, 2010, so something will soon happen worth discussing.

From the shameless commerce division, with at least a dose of self promotion, I can announce that PLI has selected Hot Topic Briefing dates for a Bilski v. Kappos audio briefing, which comes with CLE credit. Registration will not be open until we have a decision date, but the dates have been selected, with all faculty clear to participate. The dates are:

• If decision on Monday June 21, PLI program on June 23, 2010 from 1pm to 2:30pm
• If decision on Thursday, June 24, PLI program on June 28, 2010 from 1pm to 2:30pm
• If decision on Monday, June 28, 2010, PLI prgram on June 30, 2010 or July 1, 2010 (to be announced) from 1pm to 2:30pm