The Decline of the Patent Registration Exam

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.