Patent Bar

The patent bar is an exam an individual must take to become a patent attorney or patent agent. It is also known as the patent bar exam or patent exam. By passing this exam, these professionals can represent inventors in front of the United States Trademark and Patent Office (USPTO). Unlike traditional bar exams, applicants do not need a legal background. Instead, those taking the test must show scientific or technical background. An applicant is considered to have this background if they have a science or engineering bachelor's degree from an accredited U.S. or foreign university.

Why Is the Patent Bar Important?

The patent bar is the only way for individuals to represent inventors before the USPTO. Without passing it, there's no legal way to become a patent attorney or patent agent. The exam tests the laws, rules, and procedures dictated by the Manual or Patent Examination Procedure (MPEP). This analyzes a person's ability to give valuable service, advice, and assistance to inventors in preparation and prosecution of patent applications.

Patent attorneys have earned a law degree from an accredited U.S. university, passed the bar, and passed the patent bar. A patent agent has passed the patent bar but has not passed a bar exam.

It's important to note that passing the patent bar doesn't qualify a person to practice in trademark cases.

How Do I Apply to Take the Patent Bar Exam?

To take the patent bar exam, you must:

  • Apply to the USPTO director by completing an application and registration form.
  • Furnish all materials and information required.
  • Gain the approval of the director of the Office of Enrollment and Discipline (OED). This includes convincing the director of good moral character and the scientific or technical background to advise patent applicants.

You can apply at any time of the year. Once accepted, you have 90 days to apply for the patent bar exam. This window starts five days after they mail your acceptance letter. If you fail to take the test within 90 days, you must start the process over.

If your application is incomplete or filled out incorrectly, it's not voided. Instead, you receive a postcard from the USPTO. This describes what other materials they need to review and finish your application.

What Bachelor's Degrees Are Required to Take the Patent Bar Exam?

Only science and engineering degrees are accepted for admittance to the Patent Bar Exam. Acceptable science degrees include:

  • Biology
  • Biochemistry
  • Botany
  • Chemistry
  • Pharmacology
  • Physics
  • Textile Technology
  • Food Technology
  • Electronics
  • Computer Science: This requires university accreditation from the Computer Science Accreditation Commission (CSAC) of the Computing Sciences Accreditation Board (CSAB) or by the Computing Accreditation Commission (CAC) of the Accreditation Board for Engineering and Technology (ABET).

Engineering degrees permitted are:

  • Aeronautical
  • Civil
  • Agricultural
  • Electrical
  • Mechanical
  • Industrial
  • Ceramic
  • Biomedical
  • Computer
  • Chemical
  • Geological
  • Metallurgical
  • Mining
  • Nuclear
  • Petroleum

You may also substitute adequate coursework for a degree. These situations include one of the following:

  • 24 credit hours of physics
  • Eight credit hours of chemistry or physics including a lab coupled with 24 credit hours in botany, biology, microbiology, or molecular biology
  • 30 credit hours of chemistry
  • Eight credit hours of chemistry or physics including a lab coupled with 32 credit hours of engineering

If an applicant does not have one of these bachelor's degrees, their application isn't accepted by the USPTO. If you do have one of these degrees, only an official, original transcript from the university with the stamp or seal is acceptable. A diploma, copy of the diploma, or copy of the transcript isn't allowed.

Individuals wishing to take the patent bar exam that do not have one of these bachelor's degrees can still take it. However, they must have a scientific or technical background and earn the approval of the director of the OED of the USPTO. This includes people who have earned a master's degree or higher in one these subjects, but not a bachelor's degree.

What to Expect on the Patent Bar Exam

Once you have satisfied the director of the OED and submitted an application and required forms, you have 90 days to sign up for the exam. The exam takes place at a Prometrics testing center. There are over 400 locations throughout the country and over 10,000 test centers in 160 countries. These exams are usually offered Monday through Saturday. The USPTO also gives the exam at its offices in Alexandria, Virginia, on certain dates. You must call ahead or book online to reserve your preferred date and time. When you arrive, have a valid ID. In some cases, they may also photograph and fingerprint you for verification.

The patent bar exam is a fully computerized, multiple choice exam. It features 100 randomly selected, equally weighted questions. Test takers have three hours to complete the first 50 questions and another three hours for the remaining 50 questions with a one-hour lunch break in between. Once you complete the first 50 questions, you cannot go back and change your answers during the second half of the exam. At the end of the three hours, the computer shuts down automatically. Therefore, it's in your best interest to make educated guesses and keep up a steady pace. You cannot take anything into the test. The exam administrator provides a pencil and scratch paper.

The exam is somewhat open book. Relevant documents are available on each question. However, going over this material is time-consuming. If you aren't sure about a question, it's best to check these documents if you have time left over.

The interface of the exam is also easy to navigate. It allows you to mark questionable answers to review later, skip questions, and return to questions with ease. If you aren't familiar with the program, you're allowed a 15-minute tutorial before the exam.

In certain instances, you may want to take a paper test. However, most study groups advise against this. If you must take the paper exam, it's only administered at the USPTO office sometime in July.

To pass the test, you must get 70 percent of the questions correct. However, this doesn't mean you have to answer 70 out of 100 correctly. Each test has 10 beta questions which do not count towards the final score. This means you only need to answer 63 out of 90 correctly. However, you won't know which questions are beta questions, so it's best to answer all questions to the best of your ability. Beta questions are newly added questions that the USPTO includes to see how test takers fare. If deemed acceptable, these questions are then added to the permanent database of the patent bar exam.

At the end of the exam, you receive an instant preliminary result, which shows how you may have fared on the exam. These are usually accurate and reliable. You will receive a letter a day or two later that lets you know whether you passed or failed. You won't receive your score on a passing result.

If you fail the test, you will receive a score. You must then go to the USPTO to see your exam. To look at your exam, you must call the OED at 571-272-4097 within 60 days to schedule an appointment. Although you can't copy any answers or take this test with you, it helps you better prepare for your next patent bar. However, you must wait 30 days before retaking.

When Should I Take the Exam?

You should take the exam when you feel ready. A typical person that passes the exam studies for about 200 hours and answers roughly 400 practice questions. This is usually in three-hour to four-hour sessions over one or two months. If taking a sample test, you should try to shoot for a goal of three minutes per question. You should also look at your schedule and find a time when you can devote these months to preparation. This is usually about 20 hours of free time a week. Depending on your learning habits, self-study or a course could prove beneficial.

If you decide to take a course, ordering the materials in advance is an advantage. This allows you to review them and formulate questions before entering the classroom. After 100 hours of study, you should send in your request for an examination time. Software such as Patware is also helpful. This program tells you if you're ready for the test based on sample questions you answer. If you use Patware, don't apply for the exam until it tells you that you're ready.

Recent Additions to the Patent Bar Exam

In recent years, the USPTO has expanded the patent bar exam to include recent cases.

  • On April 12, 2011, the patent bar exam added KSR v. Teleflex, Bilski v. Kappos, and the 112 Guidelines.
  • In January 2012, the USPTO updated the exam to include two rules of the America Invents Act (AIA). These rules deal with prioritized examination of patent applications and re-examination requests.
  • Beginning in 2013, the USPTO added "phase three" to the patent bar. This includes all aspects of the AIA, which outlines first-inventor-to-file patent laws of the act.
  • On October 2, 2013, the USPTO added six new testable documents in the form of Federal Register Notices. This was the result of the newly enacted AIA.
  • In January 2014, the examination now covers the first inventor to file rules, the Patent Law Implementation Treaties Act of 2012, and changes to the rules regarding the representation of others before the USPTO.

What makes these additions interesting is that it makes the exam look far different post-2014. In addition, the USPTO does not release example questions and hasn't since 2003. This means that study material issued before 2011 is worthless for current patent bar examinations. Taking a patent bar review course is far more helpful.

Frequently Asked Questions

  • How hard is it to pass the patent bar exam?

The patent bar exam is exceptionally difficult. Historically, passing rates are between 25 percent and 50 percent. Preparation is a key element of passing. While you can study on your own, patent bar exam courses are one of the best ways to prepare yourself for the exam. Some of these courses tout a first-time passing rate of 90 percent.

  • Are there any fees?

The application to take the exam requires a $40 application fee and a $200 examination fee. If you aren't admitted to take the test, the $200 is refundable. The Prometric testing center also charges a $160 testing fee. After passing, the USPTO then requires a $100 fee to register as a practitioner. In total, you pay $500 in fees for the patent bar.

If you need help with the patent bar or patent bar exam, you can post your job on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or for companies like Google, Stripe, and Twilio.