New Look Patent Bar Examination Continues to Evolve

In order to become a patent practitioner one must take and pass a federal examination administered by the United States Patent and Trademark Office. What sometimes gets missed by some individuals is that you do not need to graduate law school in order to take the patent bar examination. Anyone with a technical degree is qualified to sit for the Exam, and those without the requisite technical degree can still qualify to take the patent exam if they have enough science credits in college courses; the number of required credits ranging between 24 to 40 depending on the category B path for which you qualify.  See Does My Degree Qualify Me to Take the Patent Bar?

Those who successfully pass the patent registration examination and who also successfully clear the background character and fitness check are able to represent individuals and companies who seek to obtain a patent. If you are an attorney admitted to practice when you pass you become a patent attorney, if you are not already an attorney you become a patent agent. If you are a patent agent and then subsequently become an attorney you essentially trade in your “agent’s license” and become a patent attorney. This is the path that many in law school pursue, giving them the ability to put on their resume when looking for jobs the fact that they are already a patent agent. Still others in the science field who have no plans to go to law school become patent agents and can enjoy a good career working for a law firm or on their own helping inventors.

Regardless of the path you take to become a patent practitioner, everyone needs to know that recently the patent bar exam has changed, and the changes are significant. On April 12, 2011, the United States Patent and Trademark Office updated the patent bar examination to bring the test current with practice realities and the law as it exists presently. This was a major undertaking given that the last time the patent bar exam had been updated was in 2006, and those familiar with patent practice know that over that period of time a great many things had changed, including several sweeping changes that impact every patent application.

The Office of Enrollment and Discipline within the USPTO is responsible for patent attorney and patent agent enrollment, discipline and also for administering the patent bar registration exam. It has now been nearly two months since the OED implemented the updated patent bar examination, so let’s take a look at what we know about the updated exam.

In order to maintain the integrity of the patent exam, the USPTO does not release specific information about questions appearing on the current version of the exam, or the precise subject matter covered therein. In fact, the last time the Patent Office released old exam questions was October of 2003. Those questions, along with those released in April of 2003, remain quite important for those studying to take the exam, at least according to those I have heard from who have taken the patent bar since the April 12, 2011 change. However, relying on old exam questions does not seem to any longer be a winning strategy, and can be expected to be less and less of a winning strategy moving forward.

There had been some question in some circles about whether the Patent Office could meet the announced April 12, 2011, deadline for the new exam. I never really doubted they would knowing how the Office runs under the guidance of David Kappos, the Director of the USPTO. Deadlines simply do not slip and everyone seems to work together as a team to accomplish the goals that are set by PTO leadership in consultation with those who will be tasked with implementation.

What I can report is that the USPTO did, in fact, meet the April 12, 2011, deadline and the newly testable material is being tested as advertised. The USPTO is also continuing to update the exam through a rigorous process of writing, vetting, and testing new questions. In addition to covering long-standing areas of patent practice, questions are being added to the database that are directed to new and emerging trends in the law and evolving rules of procedure. The subject matter covered by the exam as a whole will continue to test rules, laws and regulations that have been in existence for years, but will also increasingly include questions testing the changes.

Historically, whenever the patent bar examination was updated there was a disproportionate weighting of questions applicable to newly tested materials. That was then and this is now. Then the patent bar exam was given in paper form once or more commonly twice a year. Today the exam is a computer based exam and available on-demand at a variety of testing centers across the country. See Patent Bar Examination Administration.  Feedback received from recent takers of the exam suggests that there may already be an evolution of sorts ongoing, although it is certainly fair to observe that second hand feedback can be unreliable. Notwithstanding, immediately after the April 12, 2011 change I was hearing that the newly testable materials were, in fact, being tested, but the questions seemed to be rather easy and straight forward. It seemed the new questions were not the “fact pattern questions” that typically are the harder of the patent bar questions. The types of questions appearing on the new material were reportedly “which of the following would you consider” and “which of the following are true.” More recently, however, the feedback has indicated that those types of questions continue to be asked, but the harder fact pattern questions are appearing with greater frequency relative to the newly testable material. That would suggest that the OED is indeed continuing to add questions, which should be anticipated to be an ongoing process moving forward.

Indeed, by focusing on the patent bar exam Kappos and his leadership team has shown that it is their mission to revise and improve all aspects of the Patent Office. In fact, Kappos explained just before the April 12 updating of the exam that he viewed this as an important matter because testing new patent attorneys and patent agents on the latest law and regulations would result in a better, smoother patent process for clients and examiners a like. Kappos explained: “Patent applicants and examiners will benefit from the updated registration examination because newly registered patent attorneys and agents will have demonstrated familiarity with the most current patent laws, rules and procedures.”

Those who are thinking of taking the patent bar examination should realize that the exam is now a moving target, relying on the many old and dated review courses and actual exam questions is not a winning study strategy, and that the patent bar exam will only get harder. Patent reform efforts are once again heating up, with some reports suggesting that the House of Representatives may vote on patent reform as early as the week of June 13, 2011. Regardless of whether patent reform happens in the near term, reform efforts certainly feel different this time. The Senate has already convincingly passed a version of patent reform, and the version unveiled in the House is quite similar. The Obama Administration is fully behind patent reform, so it seems likely to happen at some point.

Patent reform plus the reality that the OED is continuing to write questions and supplement the patent exam to keep it fresh and up to date means that once patent reform passes the patent bar exam will become harder still, perhaps extremely hard. This is due to the fact that already filed patent applications will almost certainly be examined based on the substantive law in place at the time they were filed, with new applications having current substantive law applying. Thus, those taking the exam will need to learn two different regimes and apply them accordingly depending upon the filing date of the application mentioned in the question. The exam isn’t going to get any easier, and likely will get harder, so the smart advice is to take the exam sooner rather than later if you have that option.


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