Do Patent Agents Need to Be Admitted to the Patent Bar?

by Stephanie Dube Dwilson
Patent agents take the same patent bar as attorneys.

Patent agents take the same patent bar as attorneys.

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Patent agents help inventors file patent applications with the U.S. Patent and Trademark Office to get legal protection for their inventions. Patent agents, just like patent attorneys, must pass the patent bar to practice before the USPTO. The patent bar is difficult to pass, with the pass rate typically falling below 60 percent. In 2012, out of 3,365 people who took the patent bar, only 53.8 percent were able to pass. You can take the patent bar as many times as you want, but not more often than once a month.

Agent vs. Attorney

Patent agents and patent attorneys must have the same education and moral requirements to sit for the patent bar. They also take the same patent bar exam. Both agents and attorneys can conduct patent searches, prepare and file a patent application, and see it through amendment and USPTO approval. Patent agents typically charge less per hour than patent attorneys, but unlike attorneys, they can't file patent infringement lawsuits or defend against an infringement suit. They also can't file patent appeals or create licenses for approved patents.

Patent Bar

The patent bar is a six-hour, multiple choice test administered in two parts with 50 questions each. A test taker must have a minimum score of 70 or more to pass. The exam doesn't test scientific or engineering knowledge, but it tests detailed knowledge of patent law. The Manual of Patent Examining Procedure provides more information about what the exam covers.

Degree Requirements

The USPTO offers a number of ways you can qualify to take the patent bar. Category A requires that you have an approved bachelor's degree, which includes most engineering degrees and degrees in biology, physics, botany, biophysics, pharmacology, food technology, microbiology and some computer science majors. Under Category B, you may have any bachelor's degree and either 24 hours of physics courses for physics majors, 24 hours of biological sciences plus eight hours of physics or chemistry, 30 hours of chemistry plus eight hours of physics, or 32 hours of science or engineering classes plus eight hours of physics or chemistry. The USPTO website has more detailed information on what classes qualify.

Non-Degree Alternatives

If you don't qualify under Category A or B, you can still take the patent bar if you have life experience or courses taken under military service that the USPTO counts toward the course requirements of Category B. Very rarely, some people qualify under Category C, which requires practical engineering or scientific experience and passing the Fundamentals of Engineering Exam. Each state has different requirements for taking the FE exam, although most require an engineering degree. Michigan and New Hampshire do not require test takers to have an engineering degree, but passing the test without one is difficult.

Other Requirements

People who want to be patent agents must also pass moral character requirements and pay a filing fee. When filling out the application to take the patent bar, applicants must report any convictions, including traffic violations that had fines of more than $100, as of 2013. Anyone convicted of a felony or a crime of moral turpitude can't apply until two years after the imprisonment, deferred adjudication or parole ends. However, the applicant must also provide proof of rehabilitation. The requirements to prove rehabilitation aren't spelled out by the USPTO, but simply staying out of trouble isn't enough -- the actions have to show the applicant regrets his crimes. To determine rehabilitation, the USPTO looks at the big picture, including the period of time since the crime, age when crime committed, employment since the crime and acceptance by the state bar. Anyone disbarred or removed from any profession due to discipline can't apply until five years after removal.