In order to become a patent attorney or patent agent and represent inventors or corporations before the United States Patent and Trademark Office you first need the proper scientific training and then you need to take and pass the Patent Bar Exam, sometimes referred to as the Patent Agents Exam or Patent Registration Exam. The test, which is administered via computer, is an open book exam, but the Manual of Patent Examining Procedures (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 is essential to success.
Since March of 2000, I have been a principal lecturer in the PLI Patent Bar Review Course. This means I have devoted a good portion of my professional life to working with students interested in passing the Patent Bar Exam. As a result, I have come up with a number of tips that should help you develop a personal strategy for tackling the Patent Exam. Do remember though that any strategies you are going to employ should not be first unveiled on exam day. Weave these and any other strategies you want to develop into your exam preparation for maximum success on exam day.
1. 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.
2. FORGET THE INDEX TO THE MPEP
Some may be tempted to think of using the MPEP index as a reference tool to finding an answer during the exam. 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.
3. 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 memorizing the entire MPEP 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.
4. 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 or will see through practice, 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 claims questions, which frequently require you to identify which is the bad claim or which is the good claim, can turn on the presence or absence of a single word or phrase. 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. 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. You need to practice, and the PLI PatWare platform exactly mimics the Patent Bar Exam look and feel.
5. READ THE ANSWERS CAREFULLY
Make sure you read the answer choices prior to selecting your answer. Some reasons for this are obvious, and similar to what is written above about reading the questions carefully. Nevertheless, there is a not-so-obvious rationale for this bit of guidance. 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”. Reading all of the answers can also help you identify something you might be missing. If more than one answer looks correct and there is not “All of the above” as an answer choice you have likely missed something in the question. Also remember that the Patent Bar Exam questions are drafted by patent examiners who are expert at examining patent applications but who will not write the same type of questions you are likely familiar with from other types of standardized exams.
The Patent Bar Examination is a daunting exam, and one that has gotten a bit more difficult recently as a result of newly testable material coming online. The exam has never been easy, and likely never will be easy, but promises to get even harder in the likely event that patent reform (i.e., the America Invents Act) passes. The America Invents Act will dramatically change the fundamental underpinnings of patentability, as well as add a variety of new processes and procedures. The amount you will need to know once the America Invents Act gets tested will go up dramatically, so if you have been thinking about taking the exam it is probably a good idea to take it sooner rather than later.
With these tips and a thorough patent bar review course you should be well set to pass your first time!