In order to represent clients before the United States Patent Office it is necessary to take and pass the patent bar exam. In order to be registered to practice before the Office the individual seeking registration must: (1) Apply to the USPTO Director in writing by completing an application for registration form supplied by the Office of Enrollment and Discipline (OED) and furnishing all requested information and material; and (2) Establish to the satisfaction of the OED Director that the applicant possesses good moral character and reputation, as well as the requisite scientific qualifications and competence to advise and assist patent applicants in the presentation and prosecution of their applications before the Office.
The patent bar exam is a multiple-choice examination made up of 100 questions. You will be given 3 hours to complete the first 50 questions and another 3 hours to complete the second 50 questions. The exam is on-demand and can be taken any time. An application to take the patent bar must be completed and submitted to the Office of Enrollment and Discipline (OED) at the United States Patent and Trademark Office (USPTO). If your undergraduate science or engineering degree is listed on Category A you can expect to receive an admissions ticket within about 10 days. If you apply late spring or early summer this can stretch to 14 to 21 days because that is the time of the year the Office tends to receive the most applications. If you are attempting to qualify under Category B you can anticipate getting an admission ticket within about 10 to 14 days after a complete application is submitted, provided you submit all the required information, including copies of the course descriptions in place at the time you actually took the course. Again, this can take longer during late spring or early summer.
The patent bar exam has recently been updated. Effective August 16, 2018, the patent exam will cover all materials referred to in the source materials designated as testable by OED. These source materials will not include the Subject Matter Eligibility Guidance and Training Materials that were previously included in the source materials for the registration examination through August 8, 2018. That does not, however, mean that patent eligibility will not be tested on the patent bar exam. According to OED, the topic of patent eligibility will be covered on the new updated examination beginning August 16, 2018, as set forth in the materials found in the Manual of Patent Examining Procedure (MPEP), Ninth Edition, Revision 08.2017.
The topic of updates to the patent bar examination brings us to an important matter. The patent bar exam has become a moving target. While it does not wildly shift overnight, or change in unannounced ways, gone are the days the exam would remain the same for many years.
Several years ago, in April 2011, the patent bar examination was updated to test KSR v. Teleflex, Bilski v. Kappos and the 112 Guidelines, which are now all a part of MPEP Ninth Edition, Revision 08.2017. Indeed, since April 2011, the patent bar examination has undergone near constant yearly revision and updating.
Although the aforementioned 2011 change happened some time ago it was a pivotal moment for the Office in how they envisioned the patent bar exam. For years prior to this update the test had grown stale to the point that nearly 50% of the questions asked were repeated from old exams the Office had made publicly available. With this 2011 update the philosophy of the patent bar exam changed, and ever since the Office of Enrollment and Discipline has updated the corpus of testable information yearly. Sometimes with large changes, sometimes with small changes.
For example, the America Invents Act (AIA) ushered in numerous changes to the law. The U.S. is no longer a first to invent country, which became effective March 16, 2013. For some time after the change the Office did not ask too much relating to first inventor to file, and then equally tested first to invent and first to file, but over the last several years the patent bar exam has nearly abandoned first to invent questions in favor of exclusively (or nearly exclusively) asking only first inventor to file questions.
Unfortunately, the USPTO has not released any patent bar questions since 2003. While the 2003 exams are helpful, the law and rules tested in available, released exams is extremely outdated, making studying from old exams of marginal benefit at best. Those who take the PLI Patent Bar Review Course will have access to many hundreds of exam level difficulty questions to practice from. We continually adjust the 2002 and 2003 exams so the questions and answers remain good, exam level difficulty practice questions based on the current law that will be tested. We also continually write new exam level difficulty questions. We have over 150 exam level difficulty questions that focus on AIA and over 100 that collectively deal with KSR, Bilski, the 112 Guidelines and appeals. We have a 50-question practice final exam that is designed to be quite difficult to gauge your readiness for exam day. We recommend that students do a minimum of 700 exam level difficulty questions after taking the PLI patent bar review course. If you do 700 exam level difficulty questions, spending 3 hours answering every 50 questions and another 3 hours debriefing every 50 questions, you will be well on your way to passing the exam.
In terms of exam administration, the patent bar exam is delivered via computer and upon receiving an exam registration ticket from OED you must schedule the exam during a 90-day window. You take the exam at a Prometrics testing facility, and there many hundreds of facilities across the United States.
At the end of each 3-hour segment answers will be submitted so it will not be possible to return to the first 50 questions during the second 3 hour segment. It is also important to realize that when time expires the computer will automatically submit the answers whether or not you have selected an answer choice for each question. Therefore, it is extremely important to pace yourself and be sure that you answer every question, even if you only guess. For those who are thinking about taking the patent exam without first taking a patent bar review course I recommend that you read Beware Bad Advice and New Rules, Old MPEP Make for Difficult Study. Sadly, we continue to hear stories from people who follow bad advice and continue to believe they merely need to study the extremely outdated 2003 exams – which are now over 15 years old!
Unlike certain other standardized tests there is no penalty for guessing during the patent bar exam. You merely need to get 70% on the exam, so if you can guess your way to that threshold you will pass. However, this 70% score to pass does not exactly translate into needing 70 correct out of the 100 questions asked. This is because everyone who takes the exam is given 10 beta questions that do not count toward the overall score. So, you really need to get 70% out of the 90 questions that will count on your exam, or 63 out of 90. There is no way to tell which questions are the beta questions, so you should not assume any particular question is a beta question and can be skipped. The purpose of these beta questions is presumable to allow the Patent Office to add questions and test them to see if they are good questions prior to adding them to the permanent database of questions that count toward achieving the 70% required for licensure.
As many know, I have taught the PLI patent bar review course since 2000. During the Winter of 2017 we did a comprehensive survey of our students and determined that despite the 47% overall pass rate our pass rate continues to be 85%. We also typically teach between 50% of those who take the patent bar examination in any given year. Therefore, you can imagine that those taking this exam on their own without any guidance are likely to fail. Add onto this the fact that those who qualify to sit for the exam are engineers and scientists, a group of people not typically known for such widespread failure, and you can get a sense for just how difficult this exam is to pass.
If you are interested in taking the exam please see the General Requirements Bulletin from the USPTO. I have also collected all the information you need to know about the patent exam and preparing for the examination in the links below. For more information on the patent bar exam please see:
- USPTO to Update Patent Bar Exam in August 2018
- Reflections of the Patent Bar Exam
- Reflections on Taking the Patent Bar Exam
- Everything You Need to Know About the Patent Bar Exam
- Patent Bar Exam: MPEP Search Strategies
- Beware Patent Bar Exam Study Advice
- USPTO to Update Patent Registration Exam April 2013
- Patent Bar Blues: New Rules, Old MPEP Make for Difficult Study
- The Latest Intelligence on the Updated Patent Bar Exam
- USPTO Updates Registration Examination for New Patent Practitioners
- Patent Bar Exam Refresh: PTO Now Testing New Materials
- USPTO Changes Format and Links to MPEP
- Legal Jobs: Patent Job Market Shows Signs of Improvement
- Becoming Patent Bar Eligible: What Courses are Acceptable?
- Buyer Beware! Counterfeit Patent Bar Review Courses on eBay
- Vote for Chance to Win FREE PLI Patent Bar Review Course
- PTO Updates Patent Bar Exam to Test AIA & Appeal Rules
- Patent Reform and Patent Bar Review, What You Should Know
- Patent Bar Exam Craziness, Do You Know How Long a Month is?
- New Look Patent Bar Examination Continues to Evolve
- Top 10 Reasons to Take the PLI Patent Bar Review Course
- USPTO Updates Registration Exam for Patent Practitioners
- USPTO Announces Impending Update to Patent Bar Exam
- PLI Patent Bar Review Summer Tour 2010
- PLI Patent Bar Review New Live Course at Santa Clara May 24-28
- USPTO Announces Live Administered Exam Schedule for 2010
- PLI Patent Bar Review Spring/Summer Tour 2010
- What a Soon to be Patent Agent Learned from Googling Himself
- Does My Degree Qualify Me to Take the Patent Bar?
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