This Article focuses on the PTO’s management of the patent registration exam instead of one of the agency’s other non-examining responsibilities for three reasons. First, as already mentioned, a critical analysis of the exam has not yet been conducted and is overdue. Second, because the PTO’s exam-related responsibilities are well defined and relatively narrow, the quality of the PTO’s execution of them can be examined in some detail. Finally, the subject presents a unique opportunity to gather and study a set of primary sources that to my knowledge has not yet been subjected to any kind of scholarly analysis: the exams themselves. Thus, in researching this Article, I collected eighty-one registration exams administered over the course of forty-nine non-consecutive years, with each full decade represented by at least five years’ worth of exams. Copies of many of these exams were obtained in response to Freedom of Information Act (FOIA) requests to the PTO. Because these documents are not otherwise easily accessed, they will be published in connection with this Article on a webpage hosted by the University of Houston Law Center’s Institute for Intellectual Property and Information Law. It should be noted that passage of a written exam is only one requirement that must be satisfied to become a registered patent prosecutor. The other major requirement is proof of technical competency in the form of education or training in a recognized scientific or engineering discipline. This Article is limited to a consideration of the exam requirement, the technical requirement having already been analyzed by other scholars. Nevertheless, the two requirements necessarily overlap since a patent’s validity and strength can be diminished by the drafter’s technical incompetence even where the drafter’s legal competence is not an issue. Part II of this Article describes the historical circumstances that led to the adoption of the exam requirement. Part III then describes the evolution of the exam from its first administration in 1934 and continuing to the present day. The story these exams tell is that the patent registration exam was the subject of continual tinkering by the Patent Office, with changes made at least every decade and sometimes every year. Notwithstanding these frequent adjustments, some patterns emerge. Specifically, for the first few decades of its history, the Patent Office endeavored to make the exam more rigorous and comprehensive. But as the twentieth century came to an end, practical considerations stemming from a shortage of funds and labor took precedence over quality when the PTO introduced changes to the exam that have had the effect of impairing its quality. I describe these failures in terms of modern psychometric standards that apply to professional licensure exams and conclude that the U.S. patent registration exam is today an invalid, unreliable, and unfair assessment of readiness to practice. Part IV describes the consequences of the exam’s failures, which include wasting the agency’s and examinees’ valuable time and resources and undermining confidence in the PTO’s institutional legitimacy. Finally, Part V concludes that the exam likely has continued relevance and so is worthy of efforts to improve it. Among other things, I propose that the PTO outsource most of its exam-related responsibilities to an independent testing expert and enforce copyrights that consequently would attach to test forms, questions, and answers. These suggestions for change should not be too difficult to implement and would almost certainly improve the quality of the exam.
The Decline of the Patent Registration Exam,
91 Neb. L. Rev.
Available at: https://digitalcommons.unl.edu/nlr/vol91/iss2/3