ABOUT THE PATENT BAR EXAM

The Definitive Guide

Even if you’re at the very first stages on your journey to becoming a Patent Agent or Patent Attorney, you’ve likely heard the biggest hurdle is passing the Patent Bar Exam.

Now that you know you must pass the Patent Bar, the next logical question is what’s this exam all about? And that’s where this guide comes in.

Continue reading to learn all about the Patent Bar Exam including details on exam day and specifically what makes this exam so difficult.

You can select from the contents below or just continue scrolling through this guide.

CONTENTS

PATENT BAR EXAM OVERVIEW

Section 1

The patent bar exam is offered by the USPTO (or United States Patent and Trademark Office). It is officially called the Examination for Registration to Practice in Patent Cases Before the Patent and Trademark Office. Informally, it is known as the patent bar.

If you’re hoping to gain registration status by the USPTO as either a Patent Agent or Patent Attorney then you must take and pass this exam.

The patent bar is a 100 question, multiple-choice exam. You must answer at least 70% of the questions correctly to get a passing score.

The exam consists of a morning and an afternoon session with a 1-hour break between the two sessions.

Each session consists of 50 multiple-choice questions.  You’ll have 3 hours to complete each session. The total time you have to answer the 100 questions on the exam is 6 hours.

COMPUTERIZED EXAM SESSIONS

Beginning in July of 2004, a company called Prometric began officially administering the patent bar exam via computer. You may take the computerized version of the exam on weekdays (and in some instances, even on weekends) throughout the year. Since Prometric is a national testing agency, there is likely a testing center located near you.

You should expect to be at the Prometric testing facility for a full day. Prior to the exam you’ll receive brief instructions covering a few details of the exam. After the exam you’ll be asked to take a quick survey on the testing experience and facility. If you take a computerized exam, you’ll get your scores immediately after taking this survey.

You can use the Prometric website to review all your location options. Not all tests are available at every testing center so you do need to make sure you type “USPTO” into the search box when they ask you for a test sponsor.

While Prometric administers the exam, the USPTO is the sponsor.

You’ll want to locate a test center near you if possible. If not then find out ahead of time if you need to make arrangements for an extended stay in a city near you in order to take the exam.

A PAPER VERSION OF THE EXAM?

Section 2

While the USPTO had been offering a paper version of the exam once per year, they no longer offer it.

Everyone must take the exam on a computer in an approved testing facility now.

IS THE PATENT BAR REALLY AN OPEN BOOK EXAM?

Section 3

You may not bring anything with you into the testing room the day of the test. You will be granted access to the USPTO’s Manual of Patent Examining Procedure (MPEP) and any supplemental materials covered on the exam.

The MPEP and exam supplements are the only reference materials you may access during the entire exam. The testing facility will provide you with scratch paper and a pencil, both of which will be collected at the end of the exam.

Nothing else may be utilized during the examination.

PROMETRIC SAMPLE TUTORIAL

Prometric has a convenient online tutorial of the computerized exam that includes an example of the MPEP and how you’ll be granted access to it.

As you will see, the computerized format itself is really nothing to be anxious about.

You’ll have access to the entire MPEP along with any tested supplements in PDF format. You will be allowed to reference these materials (and only these materials) during your testing sessions.

Notes, outlines, and other books are not allowed into the testing room.

MPEP SEARCH TIPS

NOTE: You may assume that because you have access to the MPEP on the day of the exam, the test will be easy and you won’t have to learn too much material. An assumption like this will almost certainly cost you time and money by resulting in a failing score.

You may have the time to look up the topics covered in approximately 10-15 questions per test session if you are familiar with the organization of the MPEP (note that you can increase this range by spending time with the structure of the MPEP like we outline in our patent bar review course).

Exam day look-up will definitely help you get a passing score, but you still need to spend time learning facts from the MPEP. No matter how good you are at looking up facts in the MPEP, you will not have time to look up answers to every question.

WHAT EXACTLY ARE BETA QUESTIONS?

Section 4

There are 100 questions on either version (the Prometric or USPTO administered version) of the patent bar exam. Out of the 100 questions, 10 questions will be beta questions.

Beta questions are not graded.

The purpose of the beta questions is to gauge the fairness of new questions before they are put into the actual question pool.

This is the procedure for every new question added to the patent bar question pool.

Even with the 10 beta questions on your exam, you will still need to answer 70% of the questions correctly. That means you need to answer 63 questions correctly in order to pass.

You will have no way of knowing which questions are beta questions and which are not so it’s best to try to answer all the questions correctly.

APPLYING TO TAKE THE PATENT BAR EXAM

Section 5

Not just anyone may take the Patent Bar exam. You must first prove to the USPTO that you possess the proper background in science or engineering before you may sit for the exam.

The patent bar requirements are typically met by completing a Bachelor’s degree in a USPTO approved science or engineering field.

Alternately, if you already have a degree in science or engineering that is not listed as a USPTO approved degree, you may still be eligible to meet the requirements. In these instances, you’ll need to get copies of your transcripts and review them for the required coursework as set out for the USPTO.

IMPORTANT LINKS

You may download the current admissions bulletin from the USPTO’s website.

We provide you with a summary of the application requirements here.

APPLICATION DETAILS

You can submit your application to sit for the computerized exam any time throughout the year. There are no application deadlines for the computerized version. The application will need to be submitted along with the appropriate fees.

The cost of the computerized exam is as follows (you will need to confirm from the USPTO’s Official site that these fees have not changed):

  1. A nonrefundable application fee of $110
  2. A registration examination fee of $210
  3. A commercial test examination fee of $173

After submitting your application to sit for the exam, the USPTO will determine whether or not you qualify. The USPTO attempts to respond to applications within 2-4 weeks of their submission, but the process can take as long as 2 months.

There’s really no way of knowing exactly how long the application process will take, which makes planning an exam date tricky.

It’s best to begin preparing for the exam before you ever apply to take it.

Once you’re admitted to sit for the computerized exam, you’ll need to schedule an appointment to take the patent bar at one of the hundreds of Prometric testing facilities located throughout the country.

WHAT HAPPENS AFTER YOU’VE BEEN ACCEPTED?

Section 6

If you’re accepted to sit for the exam, the USPTO will provide you with a 90-day window (sometimes they extend this out) for scheduling your exam with a Prometric testing center. Once this window has been granted, you must take the exam before the 90-day period expires.

Due to this window, we suggest you begin studying before you ever submit your application. Ninety days won’t be enough time for everyone. It really depends on how many hours you can spend studying per week and how quickly you’re able to get through the complex material.

Early preparations will only help ensure you’re ready to take the exam before the 90-day window has expired. We suggest you wait until completing the Guidebooks (which is step II of our strategy).  Or you have at the very least, started that step before applying to take the exam.

You can always take the exam at an earlier point during the 90-day window period if you’re ready sooner.

We realize a lot of people really want to see that they’re accepted before they start preparing, but if you meet the requirements as outlined in the official bulletin, there’s really no need to wait.

The requirements are fairly straightforward for most cases. If you are having a difficult time determining whether you meet the requirements, you can contact us. We can usually help you sort it out.

PROMETRIC TEST LOGISTICS

Section 7

On the day of your scheduled test date, be sure to bring a current ID with you (typically a Driver’s License). The exact types of identification considered appropriate will be outlined for you by Prometric and on your USPTO Patent Bar exam acceptance form.

Test takers are normally told to report to the testing facility no later than 8:30 a.m. on the day of the test. The computerized exams typically start then, but the exact Prometric testing center you take the exam at will provide you with the specifics when you schedule your test date.

Once the test begins, you’ll have exactly three hours to complete the first section of the exam consisting of 50 multiple-choice questions. You’ll have access to a PDF version of the MPEP on your computer terminal, some scratch paper, and a pencil.

TEST DAY TIPS

Prior to the day of the test, you should locate the test facility. Be sure you know exactly how to get there on exam day. Also search for the bathrooms, parking spaces, a place to eat lunch and anything else you can think of. The day of the test will be stressful enough; there’s no need to add to it.

Make sure you’re well-rested the night before the test. Of course, eat a good breakfast the morning of the test and have access to a good lunch. If you do plan to travel for lunch, keep track of the time and arrive back early to finish your exam.

It’s wise not to drink too much caffeine before or during the test. Also, try to stretch out and look away for a moment or two during the exam. Short breaks are necessary to help you focus.

Keep in mind that the temperature in the testing room may not be a comfortable 70 degrees. You may want to bring a light sweater or jacket.

Another possibility is that you might become distracted with the noise of people at other computer terminals. You may want to consider bringing in sound-deadening earphones or ear-plugs on test day if you get easily distracted. These should be allowed, although the Prometric test facilitator may need to inspect them first or they may have some to loan you if they’re not.

WHAT HAPPENS AFTER YOU’VE TAKEN THE EXAM?

Section 8

Upon taking the exam, the computer will calculate your “unofficial result.” If you passed, you’ll see a notice that you have “unofficially passed.”

The official result will be mailed out to you within a week or two. The computer will provide you with your exact score only if you fail.

One last point to make is that an individual who fails the exam may inspect the questions marked as wrong in a scheduled review session at a later date. You can schedule a date and time by contacting the Prometric facility you took the exam from. Review sessions will require an extra fee (the fee $205 at the time of this writing, but it may change in the future). Review sessions must take place within 65 days after taking the exam.

If you do fail the exam, you may re-take it and you will only need to pay the Prometric testing fee for the re-take. You will not need to pay the application fees or go through the application process again.

WHY IS THE PATENT BAR EXAM SO DIFFICULT?

Section 9

There is no special college course, training class, or specific patent-related college degree required to become a patent practitioner. All that stands between an engineer or scientist (with the appropriate technical background) and a new career is achieving a passing score on the patent bar exam.

Therefore, the PTO attempts to make this test difficult. And they do a pretty good job of that as the national pass rate usually falls under 50%.

Only highly ambitious individuals who learn the material inside-out actually pass.

PATENT BAR EXAM RESULTS

The following are actual exam results tracked by the USPTO for the last few years:

  • 2020 – 48.9% Pass Rate
  • 2019 – 45.3% Pass Rate
  • 2018 – 47.2% Pass Rate
  • 2017 – 43.9% Pass Rate

As you can see, pass rates have been under 50% across the board for the last few years.

These are the overall pass rates as tracked by the USPTO. That means these percentages include people who take a review course as well as those that don’t. In addition, those who spend a decent amount of time studying as well as those who did not are also mixed into the results.

One factor of the failure rate is that due to the 90-day window, which gets triggered once you’re accepted to take the exam, many people run out of time to prepare before they must take the exam. Ninety days is not enough time for everyone. Many people have jobs, families, and other responsibilities in the 90-days leading up to the exam.

This is why we stress the importance of studying before applying to take the exam. In the event you cannot start studying before you apply, just realize that you may have to take the exam more than once. This is often the price you pay to have the piece of mind that comes from getting the acceptance letter first.

There are a number of additional reasons for the low pass rates, including that …

  1. The exam is designed to test your analytical skills, not just your knowledge of patent law.
  2. Patent law is very confusing.
  3. You may waste time learning something that is not tested on the exam because not everything in the 3,000+ page MPEP is on the exam.
  4. The laws and rules tested on the exam change often.
  5. The exam questions are incredibly difficult. The USPTO goes out of their way to present difficult material in a manner which makes it even more difficult to comprehend.

All these difficulties aside, if you take the time to really learn the material, learn the structure of the MPEP, and familiarize yourself with previous exam questions, you will be in the best position possible to get a passing score.

WHAT EXACTLY DOES THE PATENT BAR COVER?

Section 10

DETAILS ON THE LAWS AND RULES

The patent bar exam tests your knowledge of the Manual of Patent Examining Procedure (or MPEP). The MPEP is a few thousand pages in length and it explains and references many laws and rules set-up by the Patent and Trademark Office (PTO).

The laws established by the PTO are described in “United States Code Title 35 – Patents.” This group of laws is referred to as 35 U.S.C.

The rules covered in the MPEP are known as the “Code of Federal Regulations – Patents, Trademarks and Copyrights” and are referred to as 37 C.F.R. Both the MPEP and the Patent Bar exam only cover the Regulations covered in the Patents section. The rest is for copyright and trademark attorneys to know.

In addition to the MPEP, the patent bar also often covers supplemental materials. These are typically material that will be added into a future edition or revision of the MPEP, but have not made their way into it yet.

Between 35 U.S.C. and 37 C.F.R., there are hundreds of laws and rules that establish and govern the fundamentals of patent law. You will need to know very specific details about these laws and rules in order to pass the patent bar exam.

The MPEP basically covers every angle of each of the relevant 35 U.S.C. laws and 37 C.F.R. rules. It lists them, defines them, and discusses them … exhaustively.

One thing to keep in mind is that the MPEP was written to establish the specifics of patent law not only for patent practitioners, but for PTO examiners as well (examiners are employees at the Patent and Trademark Office who determine whether or not a patent application should become a full-fledged patent).

Fortunately, there are sections of the MPEP that really only pertain to examiners and are never tested on the Patent Bar exam. Therefore, you do not need to know every law or rule or even every chapter of the MPEP to the same extent (some are tested much more often).

In addition, the MPEP is also filled with forms used by patent practitioners or inventors when filing patent applications. The MPEP also references important court cases that have helped establish the laws and rules of the PTO. As you can see, you can easily cut out quite a bit out of the MPEP when preparing for the exam, but what is left is still a fairly tall and daunting heap of paperwork.

CHANGING PATENT LANDSCAPE

Another point to make is that the MPEP is not set in stone. As we touched on earlier, as the laws, rules, and forms change, newer editions of the MPEP are published. The PTO constantly makes adjustments and refines the laws and rules. They make errors and often the updates simply correct them.

Source Materials

The PTO will notify you as to exactly which edition and revision of the MPEP will be covered along with any supplements they are testing over before you take the exam in their source materials.

The source materials essentially serve as an agreement as to exactly what the exam covers at the particular time you take it.

Fortunately, the PTO is slow to update the Patent Bar exam to reflect new material (they will post a notice 90-days before they update the exam). In addition, the same “core” topics and details are tested time and time again. It is estimated that only 10 to 15 questions will deal with the latest changes to the MPEP when you take your exam (and it’s possible these may only be in the beta question pool and not count on your exam grade).

MPEP Updates

Even the basic fundamentals of patent law change over time. The area of biotechnology is a prime example. Two decades ago, the field of biotechnology was in its early stages, but now it has exploded. The PTO has been busy adjusting their laws and rules to keep up with the changes in this area of rapidly changing technology.

Now that the America Invents Act (AIA) has been implemented there have been over a dozen new supplements added that will be incorporated into the MPEP, adding hundreds if not thousands of new pages along with at least one entirely new chapter (Chapter 2800 which covers Supplemental Examination). The MPEP is growing, which is a very scary thought.

It’s important to realize that the MPEP is dynamic and ever-changing. Once you get into the field of patent law, you will need to keep this in mind. There will always be a new manual to purchase and become familiar with throughout your career.

HOW CAN YOU BEST PREPARE YOURSELF FOR THE PATENT BAR EXAM?

Section 11

Since the Patent Bar exam is based on the MPEP, the material you need to know in order to pass the exam is very accessible. The one rather large problem is that the MPEP is thousands of pages in length and is written in rambling legal language. It does not differentiate between tested material and that which is unnecessary for the exam.

Therefore, a review course or other prep material will only be beneficial to you. Taking a proven review course will save you a lot of time and frustration. That means you can spend your time more wisely, like searching for your new job or spending time doing the things you enjoy.

When searching for a review course or other study tools, be sure the materials are created by an actual patent practitioner and that they are up-to-date.

The Patent Education Series™ Patent Bar Review (PES Patent Bar Review) provides you with what you need to know to pass and is highly competitive even in comparison with much more expensive review courses.

The PES Review is a well-structured, convenient program. You can learn from a desktop, laptop, or even a mobile device. The program is designed so that even if you have a few spare minutes, you can log in and start learning.

Additional Resources

Free Video Series: Starting a Career in Patent Law and Passing the Patent Bar Exam.

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