USPTO Responds to Congressional Request for Information Regarding Criteria for Registration Examination for Admission to Patent Bar

By Donald Zuhn –-

On Tuesday, U.S. Patent and Trademark Office Director Andrei Iancu, in one of his last acts before stepping down from the post, sent a letter to Senators Thom Tillis (R-NC), Christopher Coons (D-DE), and Mazie Hirono (D-HI) of the Subcommittee on Intellectual Property for the Senate Judiciary Committee, responding to the Senators' letter of December 11, 2020 seeking information regarding the criteria for the registration examination for admission to the patent bar.  The letter from the Senators sought the Office's response to the following six questions:

1.  What percentage of registered patent practitioners are women? To the extent the USPTO does not currently have this data, do you commit to collecting it?

2.  Has the USPTO performed or is the USPTO aware of any studies regarding the impact of its criteria/or admission to the patent bar on the diversity of patent practitioners?

3.  When did the USPTO last evaluate its criteria for admission to the patent bar? Please provide the USPTO's reasons for either changing or maintaining the admission criteria at that time, including any proposed changes considered and objective arguments or data considered.

4.  Over the past 5 years, has the USPTO received requests to change the criteria for admission to the patent bar?  If so, describe each request and the USPTO's response to the request, including the USPTO's reasons for its response.

5.  How many individuals have qualified to take the patent bar over the past 5 years? Please indicate the number of individuals, by gender, who qualified under each of Categories A, B, and C.  And, for those individuals qualifying under Categories B and C, please provide a list of their undergraduate and graduate degrees.

6.  How many individuals, broken down by gender, have requested to take the patent bar exam who did not qualify under Categories A, B, or C?  Of those, how many individuals, broken down by gender, did the USPTO permit to take the patent bar exam?  Please provide separate lists of the undergraduate and graduate degrees for those who were permitted to take the patent bar exam and those who were not, respectively.

Before addressing the questions posed by the Senators, Director Iancu noted that the Office continuously evaluates the criteria for the registration examination, and stated that "[t]hese criteria serve the important function of ensuring that those who practice before the USPTO have the requisite scientific and technical knowledge to competently represent our nation's inventors."  The Director also acknowledged that the Office shared the Senators' belief that the criteria "not . . . act to discourage applications from women or individuals from other underrepresented groups."

For registered practitioners who may not be familiar with the categories referenced in the questions above, Categories A, B, and C relate to the different ways in which an applicant can demonstrate the scientific and technical training required by the Office in order to be allowed to take the examination for admission to the patent bar.  In particular, applicants who possess a Bachelor's Degree in a recognized technical subject fall in Category A; applicants who possess a Bachelor's Degree in a subject other than a recognized technical subject, but who have completed a certain number of semester hours in specific courses or who have completed "other acceptable course work" fall in Category B; and applicants who do not qualify for Categories A or B, but who have passed the Fundamentals of Engineering (FE) test, fall in Category C.

With respect to the Senators' first question, the Office noted that while it has included a salutation field on the application for registration examination since FY2015, the Office only began accepting electronic applications in October 2019, and a manual review of the non-electronic applications "would be a lengthy process and was not able to be completed in the required timeframe for this response."  However, in reviewing the 1,937 electronic applications that the Office had received since October 2019, the Office noted that of the 397 applicants in this group who passed the examination, 29.22% selected the "Ms." field on their applications and 70.78% selected the "Mr." field.

Turning to the second question, the Office noted that it had not undertaken nor was aware of any formal studies to evaluate the impact of admission criteria to the patent bar on the diversity of patent practitioners.

Regarding the third question, the Office noted that it "evaluates the criteria for applicants to sit for the registration examination on an ongoing basis," and that based on this ongoing evaluation, the Office was "currently looking into making a number of changes to the criteria."  Among the possible changes would be to expand the list of Category A degrees, accept masters and doctoral degrees under Category A, and accept a combination of core sciences coursework under Category B.

In response to the fourth question, the Office noted that it had been contacted by a professor in 2019 who thought that changing the criteria for admission to the patent bar would result in more women being admitted, but received no further communication from the professor after directing the professor to the OED Director.  The Office also indicated that after a review of petitions from applicants denied admission to take the registration examination, it identified three situations that appeared to be responsive to the Senators' letter.  However, the Office explained that in two of the three situations, the applicant overcame the denial, and in the third, the applicant failed to provide supplemental information to the Office.

With respect to the fifth question, the Office noted that 8,540 applicants had applied to take the registration examination in the past five years, of which 8,049 (94.25%) had been approved to take the examination and 361 (4.23%) had been disapproved.  Referring to the 1,937 applicants who filed electronic applications, the Office also noted that 65.67% of these applicants selected the "Mr." salutation and 34.33% chose the "Ms." salutation.  As for the respective categories for these applicants, the Office pointed out that for Category A applicants, 67.45% were "Mr." and 32.55% were "Ms."; for Category B applicants, 59.37% were "Mr." and 40.63% were "Ms."; and for Category C applicants, 93.33% were "Mr." and 6.67% were "Ms."  The Office did not provide a list of undergraduate and graduate degrees for the Category B and C applicants.

Finally, regarding the sixth question, the Office noted that of the 1,937 applicants who filed electronic applications, 31 of 1153 applicants (2.44%) who selected the "Mr." salutation were disapproved to take the registration examination and 25 of 585 applicants (3.76%) who selected the "Ms." salutation were disapproved to take the registration examination.  The Office did not provide a list of undergraduate and graduate degrees for applicants who were permitted to take the registration examination and applicants who were not permitted to take the examination.  The Office concluded its letter by indicating that "while the statistics based on the 'Mr./Ms.' field do not show the gender data for all currently registered practitioners, this data provides some insight into the possible gender breakdown for practitioners registered in the past 14 months."  The Office also offered to provide technical assistance on legislation "[s]hould Congress desire that the USPTO collect more comprehensive data about the gender of applicants for the registration examination."

Comments

[Carl B. Massey, Jr.]

Certainly hard to parse (guess at) the goals underlying this request, in view of the disassociation between "sex" (XX, XY, and true variations) in the new administration. It does not appear that a proper analysis can even begin until more detailed information, certainly going beyond salutation notations of Mr and Ms, is obtained. Clearly, presumptions about applicants made based on this forced, outdated, and offensive, binary choice should not proceed. I am waiting for the appropriate questionnaire to be developed.

[skeptical]

I am offended that you would impose your views that binary is offensive.

Your activist privilege is showing.