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February 24, 2008

Exam Plan

USPTO registration exam questions have remained very similar throughout the years, some word-for-word identical, but the overall focus of the 100-question exam has shifted drastically. Is this merely the necessary result of a shift in exam format, or is it an indication of a change in focus at the PTO? Regardless, for those currently preparing for the Patent Bar, modify your study plan accordingly.

The exam, previously offered twice a year in paper format at 15 testing locations throughout the country, is now offered essentially any day of the year in electronic format at hundreds of Prometric testing centers across the nation. Prior to June 2004, only the paper version of the exam was offered. Test takers were permitted to bring any materials, including study materials and a marked up version of the MPEP, and excluding old exam questions, with them to the test. Currently, test takers must attack the electronic version of the exam with a pencil, some scrap paper, and an electronic, text-searchable-by-chapter, version of the MPEP.

One of the best methods of preparing for the Patent Bar remains reviewing old exam questions and working through them in a test-like atmosphere. However, the last exam released to the public is from October 2003, and although exam questions haven't changed significantly since then, the concentration of questions from different chapters of the MPEP has. In old exams, 2003 and earlier, questions were heavily geared toward Chapter 700 (Examination of Applications) and Chapter 2100 (Patentability), and although many of these questions remain, it appears the focus has shifted to other, arguably less significant, matters: Chapter 300 (Ownership and assignment), Chapter 500 (Receipt and Handling of Mail and Papers), Chapter 1200 (Appeal), Chapter 1400 (Correction of Patents - Certificate of Correction & Reissue), Chapter 1800 (Patent Cooperation Treaty), and Chapter 2200 (Citation of Prior Art and Ex Parte Reexamination of Patents).

Obviously, questions should be derived from each chapter of the MPEP, since each chapter has its own significance. However, the current distribution of questions is un-proportionate to the amount of content and the significance of the content in each chapter, and is additionally un-proportionate to the quantity of practice questions available from each section, making it more difficult to prepare for the examination.

Admittedly, with the change in exam format from the paper version to the electronic version and the corresponding change in available materials from study notes and a heavily marked up copy of the MPEP to an electronic text-searchable MPEP, it is obvious that some change in test content had to occur. Yet, questions remain. Was the change in focus the necessary change? Is the current exam a better or at least equal indication of preparedness of a future prosecutor? Can some of the current issues between examiner and prosecutor, regarding examination and patentability, be attributed to this shift?

Additionally, was the change in question concentration entirely dictated by the move to the electronic test format, or does the PTO have an ulterior motive? With current management practices, it is difficult to know.

So, what effect has this change in exam format had on patent registration applicants? Well, if we venture into chart-land, we see that there is no true historical trend for passing rates of the registration exam. Although, the average passing rate has increased from 49.2% (1992-2003, prior to electronic testing) to 57.3% (2004-2006, after the shift to electronic testing), this jump is not large enough to indicate that this trend will continue.

To those currently in the midst of studying: Limit the time you spend reviewing Examination and Patentability questions, since many of these are gimmes, and since these are no longer the heart of the examination. Concentrate instead on all of the chapters you may have overlooked at first glance; learn the details of PCTs, appeal, re-issue, and re-exam; focus on assignment, and mail dates, and facsimile transmission. Although there are not a lot of available practice questions related to these topics, try your best, review the appropriate chapters, and good luck.

To those who have recently passed the exam, after following the above advice: Congratulations! Now, please go back and review Chapter 700 and Chapter 2100 of the MPEP, so that you can be a thoroughly informed prosecutor, ready to perform his duties, in order to help revive our dying system.

Posted by Mr. Platinum at February 24, 2008 1:27 PM | Prosecution


I have heard, through a contact with USPTO OED, that the USPTO has outsourced writing new questions - apparently to the same company that is administering the computer based exam. This probably better explains the shift away from questions that are more relevant to actual practice, and into questions that appear to ensure that you can locate obscure details in the MPEP, as the writers are no longer patent professionals.

As far as ulterior motives, the only one I've heard is that a factor in moving to the computer-based exams was to escape the availability of Reg Exam questions from FOIA requests. It was well known that a significant fraction of the questions in each exam came from previous exams, and the exams were public info. It has been suggested that through the 10% test questions mechanism, eventually a private pool of questions will be stockpiled. Then, for each test taker a random set of questions will be selected (assumedly with x% from Ch. 700, y% from Ch. 2100, etc.).

Posted by: Mess at February 25, 2008 7:52 AM

You're mostly right about the exam. The reason for the shift in question mix is simply that these are the most recent areas of rule and procedure adjustment since the pool of electronic exam questions has been created. The more recent the adjustment, the more the emphasis on the exam. This fades as a newer pool of questions imerges that relate to more recently updated topics. Not much has changed in 700 and 2100 since the electronic pool was formed. The other areas, however, have seen many adjustments reflecting the new EFS emphasis of the PTO operation, more streamlined receipts of papers, etc.

Good luck to all on the Exam.

John White, PLI Patbar Chair

Posted by: john white at February 26, 2008 9:00 AM


Thanks for your input. You seem to agree that there has been a "shift in question mix". After reviewing the PLI patent bar review website, it appears that quite a bit of time, essentially an entire day of the 5 day course, is dedicated to chapter 700, and most of another day is used for chapter 2100, while less time is spent on subjects that are more prevalent on recent exams. Is this due to the lack of old exam questions available from the lesser subjects? Or, have you found in your experience, that even though 700 & 2100 are more straight forward, people taking the review course still struggle in this area? I understand that since questions from 700 & 2100 are more predictable, it might make sense to solidify knowledge in these areas to assure that easy questions are not missed. As an ex-examiner, 700 & 2100 are second nature to me, but I am curious if others do tend to struggle.

Posted by: Jordan Kuhn at February 26, 2008 9:23 AM