What Is a Patent Bar Exam?

C. Mitchell

The phrase “patent bar exam” typically refers to an exam that attorneys or lawyers must pass in order to practice before a country’s patent-granting body. All countries have specific requirements for patent law practice. Patent law around the world is a restricted, complex area of law that almost always requires passage of a difficult exam. The United States is one of the only jurisdictions that requires an exam specifically called the patent bar exam, but the term has come to generally describe a country’s patent law exam, no matter its specific title.

In the United States, the patent bar exam is offered by the U.S. Patent and Trademark Office.
In the United States, the patent bar exam is offered by the U.S. Patent and Trademark Office.

Patent lawyers are lawyers responsible for preparing patent applications on behalf of clients, prosecuting patents before the national patent agency, and challenging patents as infringing. The U.S. patent bar exam is an exam administered by the U.S. Patent and Trademark Office. If an individual passes the patent bar exam before passing the state bar, he or she is considered a patent agent, rather than a patent attorney. Due to the breadth of the required technical knowledge, the patent bar is generally regarded as one of the toughest exams to pass in the United States. As of 2010, it carried a fail rate of approximately 60%. There is no limit on how many times a person may sit for the exam.

Attorneys or lawyers must pass the patent bar exam in order to practice before a country's patent-granting body.
Attorneys or lawyers must pass the patent bar exam in order to practice before a country's patent-granting body.

In the United Kingdom, the system is similar. U.K.-based lawyers must pass a “Chartered Patent Attorney Qualification.” Lawyers in the UK can enter patent practice without first entering general practice. Once armed with a law degree, law students can sit for the patent qualification right away. The chartered exam is generally just as challenging as its U.S. equivalent.

Passing the patent qualification will allow British lawyers to practice patent law in Britain, but additional exams are required to practice patent law in the larger European Union. There exists no unified EU patent law, and each EU country has its own set of rules and laws for patent practice. In order to practice patent law broadly the EU, lawyers have two options: they can either meet the examination requirements of each country in which they want to practice, or they can try to qualify as a European Patent Attorney. In order to become a European Patent Attorney, a lawyer must first be qualified as a patent lawyer in some EU member country, and must then apply to sit for the European Patent Attorney Qualification, a series of four additional exams.

Part of the reason that patent practice is so exclusive is that, of all areas of law, it is the most technically complex. Patent applications and prosecutions regularly involve disputes about highly specific questions of science and engineering. Successful patent practice requires not only knowledge of the law, but also an ability to apply facts to that law to ensure that only legitimate and sufficiently unique inventions receive national patent protection. Patents comprise only a small sector of intellectual property law. Failure to pass a patent bar exam in no way limits a lawyer’s ability to practice in related fields, such as trademark or copyright law — neither of which usually require any special exams.

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