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