by Dennis Crouch
The USPTO has released a new Request for Comments about changing the qualification rules to sit for the Patent Bar Exam (“Admission to the Examination for Registration to Practice in Patent Cases”) that are set forth in the General Requirements Bulletin (GRB).
To be clear, the proposals in this RFC are quite modest and narrow:
- Allowing graduate degrees (Masters / Doctoral) in an accepted science/engineering field to count for qualification under Category A.
- Adding a few additional degree majors to Category A. These are all majors where applicants have been regularly able to qualify for the exam under Category B. The change here is designed to streamline the process.
- Modifying the lab requirement of Category B so that it no longer needs to be 8 hours in the same field. Thus, it could be 4 hours of physics and 4 hours of chemistry (both with lab).
I recently spoke with the USPTO head Drew Hirshfeld who sees the proposals here as primarily making the system more efficient and less cumbersome. About 1/3 of recent applicants to register fall under Category B, and handling the paperwork for those applications it is a time intensive process for both applicants and OED.
Dir. Hirshfeld noted that bigger changes may come later, such as addressing design patents and computer science; and considering the role that the registration requirements may play with regard to diversity. Eliminating the requirements altogether is really not even on the radar.
Bigger policy changes are unlikely before a new director is appointed by President Biden.
There has been a good amount of discussion regarding the artificial monopoly created by the GRB, and whether the requirements actually further American innovation. Back in December 2020, Senators Tillis, Coons, and Hirono sent a letter to USPTO Director Andrei Iancu seeking information about how the Office sets is criteria for who gets to become a patent attorney. Dir. Iancu responded just before leaving office in January 2021.
The proposed changes here are effectively identical to those proposed by Dir. Iancu in his Jan 19, 2021 letter.
My view: The proposals will incrementally improve the system, but really only at a minor level.
Should we eliminate the requirement that patent attorneys must have an engineering/science degree (but keep the exam):
— Dennis Crouch (@patentlyo) March 22, 2021
Who gets to become a patent attorney?: You may have been hoping that I would answer the question posed in the article title. It turns out that the answer depends greatly on your country of permanent residence. Some require a background in science/engineering, others require a background in law, only a few require both. In the US, a patent attorney is both a lawyers and trained scientist/engineer. However we also have patent law professionals known as patent agents who are not attorneys.
I won’t spell out the particular rules here because – as my post notes – they are in flux. But, I will direct you to the USPTO’s page titled Becoming a Patent Practitioner.