On or around January 31, the patent bar will be updated to include some of the new laws implemented in accordance with the American Invents Act. While changes to the patent bar usually result in an increase in test takers, we do not think this update should be cause for concern. Notably, the update will only include additions which regard the rules which: "a) permit prioritized examination of patent applications (Track I) and (b) revise the standard for granting inter partes reexamination requests. Additionally, the registration examination will include questions concerning the November 22, 2011 rules governing practice ex parte appeals before the Board of Patent Appeals and Interferences."
From a practical viewpoint, it is wise to start learning the law which is currently in existence, but from a strictly test-taking viewpoint, these updates are relatively small and simple. Please keep reading for an overview of the updated rules.
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Prioritized Examination: The key here is that any inventor may request prioritized at the time of filing an application upon payment of a $4800 fee ($2400 for small entities) in addition to the normal filing fees. Another key is to recognize that this is different from accelerated examination.
Inter Partes Reexamination Requests: The only inter partes update to the test regards the standard for granting a request inter partes reexamation. In accordance with the AIA, the standard has been changed from "substantial question of patentability" to "reasonable likelihood that the requester would prevail," which should increase the burden on requesters who desire inter partes reexamination.
(Note: As of September 16, 2012, inter partes reexamination will be elimated in favor of inter partes review. However, inter partes review is not being tested on the updated test, the patent bar will strictly test the standard for inter partes reexamination for requests made prior to September 16, 2012.)
Ex Parte Patent Appeals: The update regarding ex parte patent appeals will probably be where you want to spend your time. The rules have been updated to remove several briefing requirements from appeal briefs, allow the board earlier jurisdiction over appeals, and generally smoothline the appeals process. As we discussed in an earlier post, many of the updated rules are very logical and remove burdensome aspects of the process that many practitioners were frustrated with. If you do not have time to learn all of the new rules, try to pick the answer which reflects a logical, streamlined process. If you are interested in learning in all of the nuances, please check back soon, as we are preparing a comprehensive review of the new BPAI rules.
So if you are planning on taking the patent bar and can't find an open seat before January 31, 2012, don't be too worried.
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