What is the Patent Bar Exam?
The patent bar is an exam one must take to become a patent practitioner. In the United States, one cannot provide patent services (write patent applications and represent inventions) unless they have passed the patent bar. The United States Patent and Trademark Office (USPTO) has a general requirements bulletin that goes into detail about the patent bar requirements. The official title of the exam is the Examination for Registration to Practice in Patent Cases Before the United States Patent and Trademark Office. It is commonly referred to as the patent bar.
This test is a notoriously difficult exam to pass. In 2022, out of 1,768 exams taken, only 46.27% passed. The exam is designed to assess the individual’s ability to understand and apply the laws, rules, and procedures of patent practice, and to evaluate the patentability of inventions and the validity of patent claims. The content is focused on the content of the USPTO’s Manual of Patent Examination Procedure (MPEP).
This exam is a computer-based open-book test that consists of 100 multiple-choice questions. Each question has 5 possible answers. A wide range of topics related to patent law are covered in the patent bar including patentability, infringement, and claim interpretation. The test is divided into two sections: one on the laws, rules, and procedures of patent practice, and the other on the application of these laws, rules, and procedures to specific patent application situations.
Who can Take the Patent Bar?
To be eligible to sit for the patent bar and become a registered patent practitioner (patent attorney or patent agent), in addition to passing the test, an individual must meet the following criteria:
- Citizenship: An applicant who is not a United States citizen and does not reside in the U.S. is not eligible for registration except as permitted by 37 CFR § 11.6(c).
- Educational Background: The applicant must have a scientific or engineering degree from an accredited college or university or have equivalent knowledge and experience in the relevant field.
- Good Moral Character and Reputation: The individual must be of good moral character and reputation as determined by the USPTO. In addition to investigating the applicant’s background details, if they pass the patent bar, the USPTO will advertise their name and eligibility to become registered to the public for objection to registration.
According to the USPTO, there are 3 categories of educational background that determine ways one can qualify to take the patent bar exam:
- CATEGORY A: Bachelor’s Degree, Master’s Degree, or Doctor of Philosophy Degree in a Recognized Technical Subject
- CATEGORY B: Bachelor’s Degree, Master’s Degree, or Doctor of Philosophy Degree in Another Subject
- CATEGORY C: Practical Engineering or Scientific Experience
Category A: Bachelor’s Degree, Master’s Degree, or Doctor of Philosophy Degree in a Recognized Technical Subject
This first category is the most common way an applicant qualifies for the patent bar. An applicant needs to have received a Bachelor’s degree, Master’s degree, or Doctor of Philosophy degree in a “hard science” such as engineering, biology, or chemistry from an accredited United States college or university or the equivalent from a foreign university. An official transcript proving that the applicant received a degree in one of these fields must be provided to the Office of Enrollment and Discipline (OED) at the USPTO.
Category B: Bachelor’s Degree, Master’s Degree, or Doctor of Philosophy Degree in Another Subject
The second category of qualification to take the patent bar is by having a degree in another subject. The applicant must prove to the OED Director that he or she has the equivalent training to those that qualify in Category A. To prove the equivalent training of the applicant, the applicant can satisfy one of the following four options, other training, or other education listed below. According to the USPTO, to qualify, an applicant can provide proof of:
- “Option 1: 24 semester hours in physics. Only physics courses for physics majors will be accepted.
- Option 2: 32 semester hours in a combination consisting of the following: Eight semester hours in a combination of chemistry or physics, with at least one course including a lab, and 24 semester hours in biology, botany, microbiology, or molecular biology. Only courses for science or engineering majors will be accepted.
- Option 3: 30 semester hours in chemistry. Only chemistry courses for chemistry majors will be accepted.
- Option 4: 40 semester hours in a combination consisting of the following: Eight semester hours in a combination of chemistry, physics, or biology, with at least one course including a lab, and 32 semester hours of chemistry, physics, biology, botany, microbiology, molecular biology, or engineering.”
The applicant must submit a transcript to show the coursework was completed and create an accompanying document with official course descriptions for the applicable classes. Only courses with a grade of C- or better will be accepted in the application.
Other training and/or education can be considered by the OED on a case-by-case basis. According to the USPTO, “OED will consider expertise in scientific and technical training which is equivalent to that of a Bachelor’s, Master’s or Doctor of Philosophy degree in a subject listed in Category A. An applicant without a degree listed in Category A has the burden of establishing possession of sufficient training and expertise in science or engineering to be equivalent to that of a Bachelor’s, Master’s or Doctor of Philosophy degree in a subject listed in Category A. Objective evidence demonstrating that training is equivalent to training received in courses accepted under Category A may establish such equivalency.”
Other education such as foreign education, academic credit for work experience, military education, and/or life experiences could qualify an applicant to take the patent bar if that education is equivalent to the education qualifications of Category A. Some examples of this given by the USPTO in the general requirements bulletin are as follows.
- “The specific courses have been accepted for college-level credit in a Category A subject by an accredited U.S. college or university because they would be creditable if the student were to further his or her education at that institution.
- The academic credit earned in a Category A subject earned through a special credit program, such as the College Level Examination Program (CLEP), and an accredited college or university has awarded credit.
- If credit has been given for life experience, the college or university must identify the course work area(s) or courses in a Category A subject for which the credit is given. Life experience credit for courses that are not identified in its course catalog as part of a college or university’s curriculum is not acceptable, unless the college or university is giving credit for course work in a Category A subject that is a prerequisite for more advanced courses in Category A included in its curriculum.
- Credit in a Category A subject for home study course work has been granted by a postsecondary institution accredited by the Distance Education and Training Council.
- An accredited U.S. State college or university reports the degree from another institution as one whose transcript is given full value, and full value is given in a Category A subject applicable to the curricula at the U.S. State college or university.
- The education completed outside the U.S. has been submitted to a private organization that specializes in interpretation of foreign educational credentials and such education has been deemed at least equivalent to that gained in conventional U.S. education programs. The Council for Higher Education Accreditation (CHEA) may be of some help in providing information on these organizations.
- Credits from the United States Department of Agriculture (USDA) Graduate School, or other institutions determined to be equivalent for this purpose, are accepted by an accredited institution on the same basis as study in accredited colleges and universities.”
Category C: Practical Engineering or Scientific Experience
The last category in which an applicant can qualify educationally to take the patent bar is if they have taken and passed the Fundamental of Engineering (FE) test. Under this category, applicants must submit official results of the test and an official transcript showing they received a Bachelor’s degree.
Contents of the Patent Bar Exam
The computer-delivered exam is made up of 100 multiple choice questions divided into two sections: fifty (50) questions in a three-hour morning session and fifty (50) questions in a three-hour afternoon session.
- Section 1: Laws, rules, and procedures of patent practice. This section covers the fundamentals of patent law, including patentability, infringement, and claim interpretation. It also covers the procedures for obtaining and maintaining a patent as well as the rules and regulations governing patent practice.
- Section 2: Application of laws, rules, and procedures to specific situations. This section tests the individual’s ability to apply the knowledge and skills covered in Section 1 to specific situations, such as evaluating the patentability of an invention, determining whether a patent has been infringed, or interpreting the scope of a patent claim.
In addition to the content covered on the exam, it is important for individuals to be familiar with the USPTO’s rules and regulations as well as its patent examination policies and procedures. The USPTO provides a list of source materials and past exam questions and answers to help individuals who are studying for the patent bar. Prior to the exam, the OED will notify the public which updated versions of the reference materials will be used on the exam. These reference materials will be available for use on the test computer during the exam. Applicants will need to know how to find specific information in these materials in order to locate answers while taking the exam.
Ten (10) of the 100 questions are unscored beta questions. According to the USPTO, each scored question has been a beta question on previous examination and has been psychometrically analyzed. To pass the examination, the applicant must correctly answer seventy percent of the scored questions (63 questions out of 90 questions).
After Taking the Patent Bar Exam
If the applicant does not pass the exam, they must wait 30 days after the date of the last examination before retaking the examination. The applicant will also have the opportunity to schedule an optional review session to review only their incorrectly answered questions. It is highly recommended to schedule and conduct the review especially if the applicant is considering retaking the patent bar.
If the applicant passes, they will receive a communication that they passed and the registration process will begin. The registration process requires that the individual complete the Data Sheet and Oath or Affirmation forms, submit them to the OED, and pay the $210.00 registration fee. After the moral character investigation is completed (and passed) and the forms are submitted, the USPTO advertises the applicant’s name to the pubic as eligible to be registered and asks if there are any objections.
If the applicant gets through the registration process, they will be registered as a patent agent. If the applicant is an attorney, they can file a certificate of good standing with their Data Sheet to be registered as a patent attorney. The certificate of good standing must be issued within six months of submitting to be applicable. If an attorney does not have a certificate of good standing, they will be registered as a patent agent.
Passing the Patent Bar is Required to Provide Patent Services
Passing the patent bar exam is a required step for anyone who wants to practice patent law before the USPTO and represent the inventions of others. Passing this exam demonstrates that the individual has the knowledge and skills necessary to competently represent inventors, companies, and other clients in patent-related matters. The USPTO has general information and fee information to help applicants begin the process of registering to take the exam and becoming a patent practitioner in the United States.