In order to be registered as a patent agent or patent attorney in the United States, one must pass the United States Patent and Trademark Office (USPTO) registration examination, officially called the Examination for Registration to Practice in Patent Cases Before the United States Patent and Trademark Office and known informally as the patent bar.
Persons who pass the registration exam and become admitted as patent agents before admission to a state bar are allowed to change registration to patent attorney upon supplying the USPTO with proof of good standing in a state or territorial bar.
The examination is intended to measure the applicant's familiarity with USPTO procedures, ethics rules, federal statutes, and regulations. The applicant is allowed to use an electronic copy of the Manual of Patent Examining Procedure (MPEP) in the computer-based examination and a paper copy of the MPEP in the pencil-and-paper test but no other material. A large number of questions typically deal with the proper drafting and handling of a U.S. patent application or international application.
The exam is a 100-question, six-hour, multiple-choice test. The test is divided into morning and afternoon sections. The applicant is provided 3 hours to complete 50 questions in the morning, and another 3 hours to complete 50 questions in the afternoon.
The exam contains 10 beta questions which do not count towards the exam taker's final score, but there is no way to know which of the 100 questions are among these 10 ungraded questions. The required score to pass is 70%, or 63 correct out of the 90 graded questions. Statistics from examinations administered from June 9, 2005 through October 17, 2006 show that 58.2% of the 4,165 candidates passed the exam (based on MPEP 8th Edition, Revision 2).
Before June 2004, the USPTO registration exam was a pencil-and-paper test given at approximately 15 locations around the country. The USPTO has moved to a computer-based examination which can be taken on any business day at any of several hundred Prometric locations around the country. A sample computerized exam is available to provide a feel for how the exam is administered, but this "practice exam" contains no sample questions. Once an applicant has been approved to sit for the exam, he or she has 90 days in which to schedule an examination date with Prometric. The pencil-and-paper test is still offered once a year at the USPTO's office.
The USPTO requires that all those applying for registration (agents or attorneys) meet three requirements: (1) good moral character, (2) legal, scientific and technical qualifications necessary to render valuable service, and (3) competence to advise and assist patent applicants in the presentation and prosecution of patent applications. The registration exam primarily addresses the third requirement. The second requirement is typically met with a bachelor's degree in a recognized technical subject; the USPTO calls this "Category A" eligibility. These fields include biology, chemistry, computer science, most engineering disciplines, and physics. Two other options are available to satisfy the second requirement: having enough semester hours of specific science courses ("Category B") or passing the Fundamentals of Engineering exam ("Category C"). Note that the requirements for Category B eligibility are considerably more onerous than for Category A--not only must the candidate provide official college transcripts, he or she must supply a copy of the official course description, concurrent with the year that the course was taken, for each course used to establish eligibility for the exam.
Degrees in the philosophical arts (such as pure mathematics) or the social sciences (such as sociology) are not sufficient by themselves to meet the technical training requirement. However, the scientific and technical training requirement can be fulfilled by submitting proof of 40 semester hours of undergraduate courses in the above fields, 8 of which must consist of either two consecutive semesters of physics for scientists and engineers with laboratory or two consecutive semesters of general chemistry with laboratory. Consecutive means that the two courses cover one curriculum, such as physics 101 and 102. All 40 semester hours can be completed at community colleges and do not have to result in any bachelor of science degree. All of the courses must be applicable towards a degree in the subject. For example, physics with calculus would count, while physics without calculus, usually taken by other majors, would not. Other Category B qualifications allow for one without a bachelor's degree in a listed field to also demonstrate he or she has had 24 semester hours in physics for physics majors (called Option 1), 32 semester hours in chemistry, physics and biology (called Option 2) or 30 semester hours in chemistry for chemistry majors.
Non-U.S. citizens wishing to practice before the USPTO in their own country may also register by meeting the same requirements if the individual is registered to practice before the patent office in their country of residence AND if their country has a reciprocity agreement with the U.S. Currently, only one country, Canada, has such an agreement; while the Canadian Intellectual Property Office does not recognize this reciprocity. Moreover, the USPTO makes no effort to verify; the requirement exists merely on paper and has no force. Such registration is granted for the limited purpose of representing patent applicants from the individual's country of residence before the USPTO. Non-U.S. citizens legally residing in the United States, having a valid nonimmigrant work visa, and already employed by a patent firm in a patent prosecution role (often referred to as a "technical specialist") may take the exam in order to gain limited recognition to act as a patent agent for applications being handled through their employer. This law on Aliens, 37 C.F.R. 11.6(c), is not enforced by the USPTO Office of Enrollment and Discipline (OED). However, employees of the USPTO must be U.S. citizens and this is verified in a background check; patent agents who want to work for the USPTO must first become U.S. citizens.