Posts Tagged: "Patent Bar Review"

Those days are long gone, for nearly a decade now, but when you do take the examination you will be provided with an electronic copy of the Manual of Patent Examining Procedures. Don’t fool yourself though — the fact that this is an “open book” exam does not mean that it is easy or that you will be able to “wing it” and rely on the MPEP as a crutch. Many people have difficulty finishing the exam and it is a recipe for failure to simply plan to rely on the MPEP to get you through the exam. This is particularly true today where much of the examination is based on new material not found in the MPEP and only available in Federal Register Notices.

Perhaps the most ridiculous suggestion given (step 8) is to download the free PTO Patent Bar Exam Review Package from CNET. The WikiHow article explains that this free package contains MPEP 8th edition revisions 1 and 2. Why would you ever want to even consider the 8th edition revisions 1 and 2 when you will be tested on the 8th edition revision 9? Revision 9 was published August 2012. Revision 1 was published February 2003 and revision 2 was published May 2004. Why would anyone who is at all serious use materials that are a decade old to take an exam that is constantly being updated and refreshed with new materials? If you study the wrong MPEP edition you have absolutely NO chance to pass the patent bar exam.

The Office of Enrollment and Discipline (OED) of the United States Patent and Trademark Office (USPTO), has announced that the patent bar examination, which is sometimes called the patent registration exam or patent agent’s exam, will be updated again effective early April 2013. No date certain has yet been announced by the OED, but based on the previous updating of the exam when new rules became effective on September 16, 2012, it can be expected that the patent bar exam will be updated sometime during the first week of April.

The unfortunate thing is that all of these individuals were getting this question incorrect and anyone who relied on this information moving forward would get the question incorrect. The MPEP section that points to one answer as correct cites an old version of the Rule. The Rule was modified in a Federal Register Notice, which is a testable document and supersedes the MPEP. The new language of the Rule has not yet made it into the MPEP section. The moral of the story is that you have to be very careful when you rely on these forum sites and take advice from someone who is either studying or just passed the exam. They may be giving you good information, but they may be leading you astray.

Generally, the Patent Exam remains as predictable as ever in terms of what the USPTO wants you to know. The USPTO concentrates on those issues that lead to loss of rights and prejudice to your client’s situation. They want to be sure you know how to get a filing date, assert priority, respond to Office Actions, start and advance an appeal, etc. As to the post-grant procedures added by AIA Phase 2, the focus is on how they are started, timing, and thresholds of proof.

We also know from past history that when the Patent Office first starts to test new material they disproportionately weight it in the database of questions so you are likely to be heavily tested. We anticipate that the newly testable material will generate between 15 to 20 questions on the Patent Bar Exam starting immediately, or nearly immediately. This newly testable information comes on the heels of AIA phase 1 and KSR, Bilski and 112 Guidelines that all started to become tested in April 2011. We anticipate that the newly testable material that has come online since April 2011 will make up approximately one-third of your exam. That is 3o-35 questions.

Not only can’t you find the relevant MPEP sections you are looking for through a Google search, but you also cannot find the relevant statutes or CFR sections using Google. For example, I typed in “35 usc 304” into Google. The first link was to the USPTO.gov website, like it almost always is. Unfortunately, however, upon clicking the link I was taken to another “Page Not Found” screen. Ultimately you can get to it by clicking on the new MPEP link provided, scrolling down to the L Appendix, clicking on the L Appendix link and then scrolling down to Section 304. Not a lot more time, but hardly as easy to find information as it was just a few days ago.

U.S. Patent No. 6,757,068, which relates to what is described as a sourceless tracking system. See AOP Patent Study DEV-1754. The claims of this patent are extremely broad and suffer from defects not associated with prior art. A patent like the ‘068 patent is cat-nip to the anti-patent community and an all too familiar illustration that the Patent Office makes mistakes. Claim 1 is an example of something that would be deemed inappropriate on the patent bar examination because it is horribly disjointed. It should have received a rejection under 35 U.S.C. 112, 2d paragraph.

Alissa J. Holterman is the Assistant Director of Career Services at Loyola University Chicago School of Law, has been the primary administrator of for the last 5 years. Holterman says there are objective signs of improvement in the patent job market for new and recent law school graduates, and real reason for optimism. “This year there will be 123 employers are coming to PLIP, and they’ve asked for a total of 232 day-long interview schedules. That’s almost a 20% increase in employers since last year, and more than a 20% increase in interviews, ” says Holterman. “That’s more employers and interviews than any year since 2008.”

When determining whether to accept a particular course one particularly important consideration is whether the course has been accepted for college-level credit for a Category A degree at an accredited U.S. college or university. We know that the USPTO will accept courses taken at Community Colleges if those courses would count toward a degree listed on Category A. Indeed, some who are short credits will take them at Community Colleges and then be admitted to take the exam. The same rationale seems to apply when OED is evaluating online courses. So before you take a class at a Community College or online make sure that the credits for the course could be used by someone pursuing a Category A degree. If the answer is that the course would count toward the credit requirements for a Category A degree you should be fine.

The posting says that the purchaser will acquire a version of the course that was first purchased in March 2012 and includes 36 audio CDs, 8 video DVDs and Patware 9.0.  That is simply not possible because by March 2012 the courses being sold did not include any of this.  John White and I updated the course at the beginning of 2011 to take into account the then newly tested material, which included KSR rationales and guidelines, Bilski guidelines and the 112 guidelines.  At this time in the beginning of 2011 audio CDs and DVDs ceased to be provided, and Patware was no longer available in disk form. The last version of Patware on disk was indeed Patware 9.0, but that did not include any questions on KSR, Bilski or the 112 guidelines.  Simply stated, a course that included audio CDs, DVDs and Patware on disk had to have been purchased at the very beginning of 2011 or earlier.  The claims in this ad are simply false.

Beginning January 31, 2012, the United States Patent and Trademark Office will update the content of the patent registration examination to cover two new rules issued September 26, 2011 that relate to the Leahy-Smith America Invents Act. These new rules permit prioritized examination of patent applications (Track I) and revise the standard for granting inter partes reexamination requests. Additionally, the patent registration examination will also include questions concerning the November 22, 2011 rules governing practice in ex parte appeals before the Board of Patent Appeals and Interferences.

On the other hand, my presentation to the law students at Duquesne and Pitt were remarkably predictable. Whenever I travel to speak at law schools I inevitably get asked questions about what students should be doing to (1) set themselves up in a position to be hired; and (2) how to ultimately land a job. primarily about how to go about finding a job in this, or any other economy. With that in mind I thought it might make sense to do a primer on steps that can be taken in order to find a legal job.

Don’t forget that as of the end of the 2011 fiscal year on September 30, 2011, the PTO has a “backfile” of nearly 679,000 patent applications that have not yet been given even a first Office Action. It will take at least 3 to 4 years, likely longer, to resolve all the patent applications currently pending. If you factor in appeals from those cases, continuation applications and requests for continued examination and we are realistically talking about 7 to 8 years for this chunk of applications to work their way through the system, with the inevitable outlier patent application that will take 10+ years thanks to multiple delaying episodes (i.e., chaining RCEs and an appeal together, for example). On top of this, we will still be filing patent applications subject to the old, first to invent system through March 15, 2013. This, as well as reexamination timeline realities (i.e., statute of limitations survives 6 years past a patent falling into the public domain), means that the “old law” will remain relevant to life at the Patent Office for quite some time.

I’m not suggesting that those who write the patent bar examination questions are testing irrelevant stuff, but what types of questions would you ask if you were writing an exam question that tried to determine whether someone who wanted to be admitted to the club understood the rules well enough to become a member? You would likely ask questions about organization rules and procedures that fell into one of several categories: (1) those that are commonly misunderstood or unknown by current members; (2) those that are of extraordinary importance due to the magnitude of harm that could accompany a misunderstanding or mistake; or (3) those things that are particularly weird. So it isn’t at all surprising that counter-intuitive rules that are commonly misunderstood or misapplied make up a statistically relevant portion of the exam.