Some of the most popular pages month after month on IPWatchdog.com are our Patent Bar information pages, and given that I teach for the PLI Patent Bar Review Course we get a lot of e-mail inquiries regarding the patent bar examination. Pretty much every week we hear from individuals who are interested in becoming patent agents or patent attorneys, and one of the questions that is most frequently asked relates to whether a certain degree qualifies one to take the Patent Bar Exam. I completely understand why such a question is asked, and why there is so much uncertainty associated with what really should be a relatively simple inquiry. Even though the Office of Enrollment & Discipline at the US Patent and Trademark Office provides detailed information about who can qualify, there are a lot of situations where individuals fall between the cracks and are not ideally presumptively able to take the Patent Bar Exam under Category A, and they may not neatly qualify under Category B either. Hopefully this article will shed some light on the situation.
Ultimately the decision regarding whether an individual can take the Patent Bar Examination is up to the Office of Enrollment & Discipline, typically referred to simply as OED. I am already admitted to practice, and my undergraduate degree (i.e., the only one that matters for qualifying under Category A) was in Electrical Engineering so I clearly qualified to sit for the exam. Thus, I have never had the opportunity to try and contact OED to discuss a particular situation that may rest on the line and learn what it is that they tell such individuals. I have repeatedly heard over the years that when folks contact OED asking questions about whether they qualify to take the patent bar no useful information is provided. In fact, to a person I have heard the same story, which is that OED tells the caller that they cannot provide any information and that the only way to know for sure is to file an application to take the Patent Bar. Not terribly helpful or enlightening really.
I have no way of knowing whether OED provides truly non-responsive answers to inquiries, but there is probably some truth to this rumor, which is invariably always the same. I can understand not wanting to provide advisory opinions to people over the telephone, but is there no information that can be provided? The trouble is applying for the Patent Bar Exam to find out whether you qualify to take the exam is really not a viable option for the acquisition of such fundamental information. This is true because when you apply to take the exam and you qualify you will receive an admissions ticket that grants you a 90 day window within which to schedule and take the Patent Bar Exam. Typically the best approach is to take a patent bar review course, such as the PLI course, and then when you are a week or two into studying in the Post Course file the application to take the exam. This will give you the best ability to gauge when you will be ready for the exam and not unnecessarily squander the 90 day window. If you miss the window provided you need to apply again, and by then your knowledge starts to get stale. So it is clearly preferable to study, apply and then take the exam, not apply, study and take the exam. But investing the time and money to take a review course not knowing whether you can actually take the exam is not typically viewed as wise by individuals who may need to take additional courses before they can qualify under Category B.
So what information do we know that can help you get a better feel for whether you can take the exam? Here is some hopefully useful information:
- Even if OED is not typically going to provide any useful information you might as well make a phone call and see if you can get any kind of guidance. Given the cost of making the call and the time it takes, even if you get no actionable and useful information you haven’t lost anything.
- If you have a Category A undergraduate degree you will be allowed to take the Patent Bar Exam. If your undergraduate degree is “similar to” or “essentially the same as” a Category A degree you will almost certainly NOT qualify under Category A. Category A is about exact matching, and advanced degrees in Category A fields do not presumptively qualify you to take the exam.
- If you do not have enough credits to qualify under Category B you will need to find one of the options and take classes to get to the required threshold. The USPTO does not care where you get the credits, just that you get them. I have known plenty of individuals who have taken classes at local community colleges and qualified under Category B. The key is that the credits need to be usable toward a degree listed on Category A, so Astronomy for Jocks, Astrology with Mrs. Cleo and Paranormal Activity 101 are not going to qualify you to take the exam.
- If you are close to the line and you get an admissions ticket take the exam in the 90 window and pass! This likely seems obvious, but the OED has been known to erroneously allow people to take the exam. Then when you fail and reapply they might notice their error and not allow you to take the exam. I have known people who point out that “you let me take it once before,” apparently trying to make a fairness argument, which makes sense. These people are told “we know, our mistake.” So the OED is not going to compound a mistake by making it twice, so pass the first time!
- If you are willing to apply first and then study and take the exam there is absolutely nothing wrong with applying to take the exam. You just need to be truthful and honest. Remember, if you lie on your application that will be a major ethics violation if/when it is discovered, so tell the truth. If you tell the truth and they let you sit for the exam then take the exam and pass and you will be a patent attorney or patent agent.
Now, in terms of taking and passing the exam, is it essential that you take a patent bar review course? No, but it is HIGHLY recommended. In any given year PLI teaches approximately 50% of the people who take the patent bar exam, whether in live courses or in home study courses. The PLI pass rate for first time takers is approximately 90%, which live course takers having a slightly higher first time pass rate. Typically the pass rate for all takers of the Patent Bar Exam is around 50%, so you do the math. So there are a lot of folks who do not take a PLI course that are substantially pulling down the pass rate. Factor in that there are some other courses out there and while they are not as popular as the PLI course and you can see that if you are going to go it alone you have a substantial uphill battle. Finally, factor in that those who qualify to take the exam are those who are engineers and scientists who are as a group typically not known as being lazy or individuals who are used to failing exams and you get a sense for how difficult the exam is.
The morale of the story is this: you need a plan of action thought out in advance. If you take a course, like the PLI course, you are going to need about 150 hours of study, which includes 50 – 60 hours during the immersion course and another 90 – 100 in the post course, which about 75 hours laid out for you by PLI. So if you are unsure whether you qualify to take the exam you can apply and hope for the best, but do so at a time when over the subsequent 90 days you will have time to fit in 150 hours of preparation without rushing.