TAKEAWAY: To practice before the USPTO, patent practitioners must satisfy technical training requirements and pass the patent bar to establish proficiency with examination rules and guidelines.
What is the USPTO patent bar? By statute, the USPTO is charged with “govern[ing] the recognition and conduct of agents, attorneys, or other persons representing applicants or other parties before the Office” and may require such individuals to show that they are “of good moral character and reputation and are possessed of the necessary qualifications to render to applicants or other persons valuable service, advice, and assistance in the presentation or prosecution of their applications or other business before the Office.” 35 U.S.C. § 2(b)(2)(D). The USPTO evaluates those qualifications through the registration exam, commonly called the “patent bar.” The same exam is given to aspiring patent agents and patent attorneys. It currently includes 100 multiple-choice questions divided into two three-hour sessions, separated by an optional one-hour lunch break. According to the USPTO’s General Requirements Bulletin, the exam “is designed to test an applicant’s knowledge of applicable patent laws, rules and procedures, and the ability to analyze factual situations and properly apply the patent laws, rules and procedures.” It may also include questions on ethics and professional conduct. The questions are based on the Manual of Patent Examining Procedure (MPEP), the USPTO’s guide to patent examination practice, and on other published USPTO policies and procedures.
Who is eligible? The USPTO imposes technical training requirements, typically through formal education, to sit for the exam. Typically, eligibility is established by submitting an official transcript showing a bachelor’s, master’s, or doctoral degree in a specified subject, which range from engineering and physics to the biological and chemical sciences. For degrees in other subjects not expressly listed, one may qualify by showing coursework equivalent to that for a listed subject. Additionally, individuals who have sufficient practical engineering or scientific experience and have passed the Fundamentals of Engineering (FE) exam are eligible. More recently, the USPTO expanded eligibility to individuals with degrees in design subjects (e.g., industrial design, architecture, graphic design) to sit for the same exam, although upon passing, they are registered to practice in design patent matters only.
How should you prepare? The USPTO has released past exams, but none since 2003, so some questions from those samples do not reflect current law. Commercial courses offer updated practice questions and simulated exams. Although the MPEP is available electronically during the exam, it is comprehensive and not easily navigated without a degree of familiarity with the applicable rules and regulations, and corresponding MPEP sections. Given the limited amount of time candidates have to answer questions during the exam, reading the MPEP by itself is likely not the most efficient use of preparation time. Hands-on experience in patent preparation and prosecution is not required but may provide useful context for integrating the material.
Passing the patent bar allows scientists and engineers to represent inventors before the USPTO as patent agents and allows those who also hold a law degree and state bar admission to register as patent attorneys. Registration accordingly reflects a command of both the underlying science and the rules and procedures that govern how inventions become patents under U.S. law.