The Patent Bar: What it is and What it Means For You
by Holly Chamberlain and Ethan Rubin
The Patent Bar (officially the United States Patent and Trademark Office Registration Examination) allows one to engage in patent prosecution, the process of procuring patent rights for new inventions. Patent prosecution is appealing to those who want to use their knowledge of science or engineering in a legal capacity.
What does it mean for your career?
The patent bar exam exists for reasons very practical to the practice of patent law. It is in the best interests of both inventors and the United States Patent and Trademark Office (USPTO) that patent applications are written by a competent lawyer or patent agent. The eligibility requirements for the patent bar help ensure that patent agents and attorneys possess enough technical knowledge to understand and explain their client’s invention effectively to the examiner. This in turn helps to improve efficiency of patent examinations. The patent bar also tests lawyers for the requisite knowledge of patent law, and thus protects clients. Finally, the patent bar helps to prevent the USPTO from examining trivial patent applications, like inventions that supposedly defy the laws of physics or thermodynamics.
The patent bar exam also frames a general understanding of how intellectual property law firms are setup. Boiled down, in the realm of patent law there are patent prosecutors and there are patent litigators. A larger intellectual property law firm will have both kinds of patent lawyers. Patent prosecutors must pass the patent bar in order to prosecute patents before the USPTO, whereas patent litigators need not pass the patent bar exam at all. In fact, patent litigators need not have a technical degree or technical experience, although such knowledge may be useful over the course of their practice. The relation patent prosecutors and patent litigators have with each other can be simplified to this: patent prosecutors generally represent an inventor up to and including the granting of a patent, while patent litigators represent their clients after a patent has already been granted. Generally, patent prosecutors facilitate interactions between a private party (their client) and a public party (the USPTO), and patent litigators mostly resolve disputes between two private parties (two companies or inventors), often times representing a client entangled in a patent infringement lawsuit.
Although eligibility for the patent bar is only necessary for those interested in becoming a patent prosecutor, those without the necessary requirements to take the exam are not precluded from working with patents. In other words, the arenas of patent litigation, copyright law, trademark law, and trade secrets are still available for those seeking to practice intellectual property law.
Who can take the exam?
To sit for the exam, a candidate must qualify under one of the three categories laid out by the USPTO in the General Requirements Bulletin for Admission to the Patent Bar. The first category requires a Bachelor’s degree in a qualifying subject, a list of which can be found online. The second category requires a Bachelor’s degree in any subject and also requires a significant amount of course-work in the sciences or engineering. The third category allows a candidate to take the exam with a Bachelor’s degree in any field as long as the candidate demonstrates proficiency and experience in the field of engineering shown by passing the Fundamentals of Engineering Examination (FE). The applicant must present their qualifications to the USPTO in a preliminary application. The USPTO can take anywhere between a week to a few months to approve applicants and allow them to register for a test date. Note that neither a law degree nor legal knowledge beyond the scope of the materials is required to sit for the exam.
When should you take it?
Once you have been approved, you must take the exam within 90 days. Because the exam takes a significant amount of preparation, find a one to three month period in which you can dedicate 150-250 hours to studying for the exam. Make sure that you have at least two days available to take full practice exams (a 6.5-7 hour stretch all in a row) because that is the easiest way to build confidence and test-taking stamina.
What does the exam cover and what does it look like?
The exam covers patent laws, USPTO rules of practice, the relevant procedures contained in the Manual of Patenting Examining Procedure (MPEP), ethical and professional standards expected of patent attorneys, as well as any other relevant, published USPTO policies. The majority of the exam is taken from the MPEP procedures and the patent laws. Note that changes in patent law due to the Leahy-Smith America Invents Act’s (AIA) enactment on September 16, 2011, will be tested.
The exam is electronic, six-hours long, and comprises 100 multiple-choice questions split into a three-hour, 50-question session in the morning and another in the afternoon. The exam does not test scientific principles or knowledge, though familiarity with technical language is helpful in working through the test quickly and efficiently. An exam-taker must answer 70% of the questions correct to pass and there is no penalty for guessing on the exam. Ten of the 100 questions are experimental and do not count toward the score however, the exam taker does not know which questions are experimental. The exam is open book in that the laws, the MPEP, and any relevant USPTO rules and policies are accessible during the test; however, significant knowledge of the testable subject matter is required in order to move through the test quickly enough to pass the exam.
How do you study for the exam?
Some candidates choose to self-study for the exam as all of the material tested is publicly available in the MPEP or in related documents available on the USPTO website. Online databases and forums, like www.mypatentbar.com offer practice questions and answers for free. This study method is very economical, especially when compared to prep classes which cost thousands of dollars. However, the MPEP is several thousand pages long, and thus impractical to read and outline. Additionally, some of the chapters of the MPEP have not been revised to reflect changes to the law. Therefore, simply studying the MPEP and working through online practice questions can cause you to get questions wrong because the online answers rely on the unrevised MPEP while the actual exam will expect answers in accord with current patent prosecution practice (though not listed in the MPEP). Because of having to outline and determine the most important parts of the tested materials and figure out which questions in online databases have wrong answers due to test updates on your own, this study method tends to only have a first-attempt pass rate of approximately 15%.
Another study strategy is to enroll in an exam prep class. Classes can be online or in person and vary in cost. The most commonly taken prep course is the Practising Law Institute’s (PLI) Patent Bar Review; approximately 50% of all test takers take this class. The class comprises approximately 50 hours of in-person or online lectures, check-point exams as you learn each piece of the law and MPEP, and access to an online testing platform called Patware which contains thousands of practice questions guaranteed to be updated to reflect the exam that you will take. The biggest advantages of using PLI’s Patent Bar Review course is that you are given a study guide that outlines all of the tested materials and have access to their bank of practice questions, which provides the user with statistics on their strong and weak points, allowing for more targeted study. PLI’s Patent Bar Review Course’s students pass the exam on their first attempt 88% of the time. However, this course is very expensive, costing almost $2800 for non-students and almost $1900 for students. There are less expensive courses available, like PatBar’s Patent Bar Review course at $700, but pass rates of their students were not available online.
Results and Next Steps
After finishing the exam, you will immediately see your preliminary results showing whether you passed or failed the exam. If you pass, you simply see that you have passed and do not get a numerical score. If you fail, you will see your score, letting you know how close you were to passing. After you finish your exam, the USPTO will send a letter with your official results and information as to how to complete your registration if you’ve passed or how to reapply to take the exam again if you’ve failed. If you have passed, make sure to celebrate!
For retakers or those hoping to sit for the exam soon, it is important to note that the patent bar exam will change again in January 2014, adding in three more document’s worth of material from the AIA. The more patent law changes, the more the patent bar exam changes, and the less utility old exams will have in students preparation for the patent bar exam as less questions will be repeated from the released exams.