Thursday, January 04, 2007

Patent Bar in Repose

I did a quick search of this blog to see what I've already written about the patent bar. Apparently, the answer is 'nothing substantive.' And so I shall endeavor to correct said oversight.

What is it?

The Patent Bar (and it truly does deserve the capitalization) is the 3.5th circle of Hell (reference). It falls squarely between the gluttons (3rd circle) and the avaricious/miserly/prodigal (4th circle). Unfortunately, all those who desire to practice patent law in the U.S. (with respect to drafting and prosecuting patent applications) must first pass this Hellish ordeal.

In more realistic terms, it's a test developed by the United States Patent and Trademark Office (the USPTO or PTO for short), the successful completion of which is required in order to file and prosecute patent applications before the PTO. The Patent Bar consists of 100 multiple choice questions, 90 of which count towards your score. You need a score of 70% (i.e., 63 correct of the 90 "real" questions) in order to pass. The pass rate has traditionally varied greatly (e.g., 37-72%), although the more recent computer version apparently tends to have a relatively higher pass rate (56.4% for July 26, 2004 to June 9, 2005).

The test is given in two 3-hour sessions, 50 questions per session. My math gives a little over 3.5 minutes per question. Chances are that once you're prepared you won't need all of this time. Let's hope this is true because otherwise you're going to be in hot water.

The questions are based on the Manual of Patent Examining Procedure (the MPEP for short). The MPEP is the patent bible (though Chisum is a close second). It provides a searchable listing/index of patent requirements, procedures and rules. The MPEP is based on and incorporates passages from Title 35 of the U.S. Code (USC, aka "the patent laws"), Title 37 of the Code of Federal Regulations (CFR, aka "the patent rules") and various patent-related federal cases (controlling or instructive ones). It also includes portions of international treaties to which the U.S. belongs, such as the Patent Cooperation Treaty (PCT).

Who can sit for it?

Good news! If you have a "hard" science degree (bachelors is fine), some money and strong masochistic tendencies (suicidal ones work too), you can sit for the patent bar! Isn't that great?!?

I've heard of this thing before. It's pretty ugly, eh?

The Patent Bar is very ugly. Although the questions are all pulled straight from the MPEP, looking up every answer is impossible. A single question with 5 possible answers might have you looking for 5 different portions of the MPEP (and having to search at least 3 additional, irrelevant portions to determine that they are, in fact, irrelevant). Such questions are not uncommon and the exam is rather time-consuming, to say nothing of the frustration it engenders.

Cut to the chase already. How do I pass the damned thing?

As with any difficult standardized exam, practice. Take the practice exams and carefully review your answers to learn from your mistakes. Pay particular attention to more recent ones (i.e., the 2002 and 2003 ones as of the date of this post). Don't try to memorize the entire MPEP or learn everything – that's impossible, it wastes your time and fills your head with unnecessary garbage. Study what is tested.

I passed the Patent Bar on my second try, in July 2006. Of my 100 questions, I counted at least 20 repeat questions – ones I had seen on the practice exams I took. I have no idea if this is customary or unusual, but I will say that I felt incredibly confident about the exam, in large part thanks to recognizing those repeat questions.

If you can make an educated guess on a question, do it. You can't look up every answer to every question so don't try. If you're pretty sure of the answer, go with it. Maybe jot down the question number to look up the answer later, if you have time.

Study using the same materials you will be given. That is, the current version of the exam provides you with a PDF of the MPEP. Unlike the HTML version, the PDF one does not contain linked cross-citations or such. In addition, there is no tabbed browsing – you can only view one portion of the MPEP at a time. When you practice, use the PDF version of the MPEP on a computer to look up your answers in a similar manner. As one of my old band leaders was fond of saying, perfect practice makes perfect.

The "usual" studying instructions also apply. Don't kill yourself, take breaks, eat and drink, prepare well for the day of the exam, etc. I abjectly refuse to go into detail over these as I consider them fundamental for any major exam.

Should I sign up for a review course or order materials?

That one is up to you. I didn't need them. I initially ordered the PATBAR materials but then subsequently "discovered" that I don't have the patience or drive to sit through 63-odd one-hour-plus audio sessions. That just wouldn't work for me. What did work was practicing old exams, and you can get those for free over the internet. However, I have heard from friends that PLI's software and/or sessions were helpful.

Is it harder than the state bar exams?

I didn't think so. Others would disagree.

I would argue that the fundamental nature of the exams is very different. The Patent Bar tends to test you on what you know and what you can look up in a short amount of time. State bars tend to test you on memorization and regurgitation. There is no "looking it up" aspect on state bar exams. You either know it or can reasonably fake it. You can't fake the Patent Bar.

That answers my questions! Thank you ever so much for your time and assistance!

You are most welcome! If anyone has any other questions about the Patent Bar that they would like to see answered here, please feel free to leave them in the comments or send me an e-mail.

Other References

How to Pass the PTO Exam in the New Format by Jim Longacre (excellent advice)

PATBAR's Frequently Asked Questions (very comprehensive)

Old Patent Bar Exams (1997-2003) (courtesy of BarPlus Patent Bar Review)

ADDENDUM: A few additional pieces of advice I've thought of since originally writing this post.

Ignore any old test questions concerning continued prosecution applications (CPAs). They cannot be filed for utility applications under the current rules (see MPEP §201.06(d)). They are still available for design patents, however. Instead of a CPA, an applicant can file a request for continued examination (RCE, see MPEP §706.07(h)).

If you can obtain or already have some experience in working with patent applications and prosecution, said experience will be incredibly helpful when sitting for the Patent Bar. Honestly, there is some amount of rhyme and/or reason (or at least a pattern) to the rules and procedures. There are a few relatively simple tenets that almost always hold true. I should probably mention some of them here.

During prosecution of an application, the absolute last time to file a required paper (i.e., a paper required to maintain pendency of an application) is the date 6 months from the mailing date of the document (i.e., the document from which the time period for responding is set). This holds true for things such as missing parts, non-final office actions and final office actions. The one exception I am aware of is for filing an appeal brief after filing a notice of appear. You have 6 months from the filing date of the notice of appeal (i.e., the date the PTO notes it as filed) instead of 6 months from the mailing date of the notice of appeal.

If there is any question as to error, the practitioner is wrong and the PTO is right. (Surprise, surprise.)

The statutory bars are 35 U.S.C. §§102(b), (c) and (d). If the application falls under one of those sections, you cannot simply argue over the prior art. The statutory bars are absolute and unyielding. If they apply, game over.

In contrast, prior art rejections are usually based on 35 U.S.C. §§102(a), 102(e) or 103(a). You can argue around these. (It helps if you have a good argument, a strong invention and/or your examiner fails to understand key aspects of the invention and is willing to learn.)

35 U.S.C. §101 relates to subject matter.

That's all that comes to mind right now. If I remember to ponder this more and/or look at some Patent Bar questions, I'll post additional useful information. I may also reorder or reorganize this Addendum since its style doesn't fit with the preexisting post. [October 7, 2007]

Also, a suggested studying technique. After taking a few practice exams (e.g., 1-3), I recommend taking a timed half practice exam (i.e., 50 questions, 3 hours) without using the MPEP. Those questions you can answer outright, do so. Those you can narrow down to 2-3 answers, pick the best one. Otherwise go with your gut instinct and just give it your best guess. You should finish the half with plenty of time to spare (hopefully at least 1 hour to spare). Afterwards, review your answers as you normally would (i.e., learn from your mistakes).

By doing this, you can see how far along you are and how well you "get" the exam. It gives you a fair indication of your readiness. I remember doing this once or twice when I was studying for the exam and I found it to be reassuring. Know that if you're not ready or you don't "get" the exam, this practice technique will reveal that (and it may not be pretty). Either way, it's good practice and you'll learn a lot. Worth it in my opinion. [October 8, 2007]