The Decline of the Patent Registration Exam

61 Pages Posted: 29 Mar 2012 Last revised: 25 May 2014

See all articles by Christi J. Guerrini

Christi J. Guerrini

Baylor College of Medicine; University of Houston Law Center Intellectual Property and Information Law Institute

Date Written: March 1, 2012

Abstract

The quality of patent examinations conducted by the U.S. Patent and Trademark Office (PTO) has long vexed the patent community, and the subject features prominently in virtually every report on the PTO’s operations. By contrast, policymakers and academics have paid relatively little attention to the quality of the PTO’s performance of its non-examining functions. One of these functions is to promote the integrity of the U.S. patent system by regulating patent prosecutors, or those who prepare patents and negotiate their issuance by the PTO.

This Article analyzes the PTO’s management of one aspect of that regulatory system: the written examination that is an essential part of the process of registering to prosecute patents before the PTO. It traces the substantive and administrative evolution of the exam from its first administration in 1934 to the present day based on an analysis of eighty-one registration exams administered over the course of forty-nine non-consecutive years. The story that this collection tells is that the exam became increasingly rigorous and comprehensive for at least the first few decades of its history. But as the twentieth century came to an end, resource limitations took precedence over quality when the PTO introduced changes to the exam that have had the effect of impairing its validity, reliability, and fairness. This Article describes the exam’s failures in terms of modern psychometric standards that apply to professional licensure exams, and it explores their consequences for the patent prosecution profession and the PTO. It concludes with suggestions for improvement.

Keywords: patents, PTO, patent bar, patent prosecution, professional regulation, bar exam, history, licensure, psychometrics, FAIR

Suggested Citation

Guerrini, Christi J., The Decline of the Patent Registration Exam (March 1, 2012). Nebraska Law Review, Vol. 91, 2012. Available at SSRN: https://ssrn.com/abstract=2031295 or http://dx.doi.org/10.2139/ssrn.2031295

Christi J. Guerrini (Contact Author)

Baylor College of Medicine ( email )

One Baylor Plaza
Apt 510
Houston, TX TX - Texas 77057
United States

HOME PAGE: http://https://www.bcm.edu/people/view/christi-guerrini-j-d/b1e79844-9aa9-11e4-907f-005056b104be

University of Houston Law Center Intellectual Property and Information Law Institute ( email )

4604 Calhoun Road
Houston, TX 77204-6060
United States

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