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USPTO Proposes New Design Patent Bar To Encourage Diversity

On October 18, 2022, the USPTO solicited public comment on “whether the creation of a separate design patent practitioner bar would be beneficial to the public and the Office,” with an eye towards expanding opportunities for women and minorities. Currently there is a single patent bar examination to allow practitioners to file and prosecute both design and utility patents at the USPTO. To qualify to sit for the patent bar exam, practitioners must hold a technical degree in a science or technology field, such as in engineering, physics, chemistry or life sciences. While such educational requirements are often necessary for handling complicated claims and subject matter commonly associated with utility patents, advocates for change however argue that there should be different requirements for practitioners who prosecute only design patents.

One of these advocates is USPTO Director Kathi Vidal. Director Vidal explained that “[f]rom my perspective, if you look at the technical requirements of practicing before the PTO, they’re really oriented around utility patents. They do not align with the criteria that you need to practice in the design space.” Riddhi Setty, Vidal Pushes for Design Patent Bar, More Diversity at IP Agency, Bloomberg Law, Oct. 17, 2022. Indeed, design patent examiners with the USPTO typically have degrees in industrial design, applied arts, architecture, graphic design, fine/studio arts, product design, or art teacher education. The USPTO is seeking input on whether design patent practitioners should also be able to practice before the Office with one of these degrees, or others, instead of a hard science background.

According to Director Vidal, the proposed changes are aimed at ensuring that “everybody has an opportunity to participate in the innovation ecosystem to make sure that we’re not creating unnecessary barriers to practice before the USPTO.” Id. An important goal of these changes is to provide more opportunities for women and minorities, groups that tend to be better represented in art/design fields than in STEM degrees. With regard to implementation, questions appear to focus on whether design practitioners should be allowed to take the current patent bar examination, or whether a separate exam focused on design patents should be created. There are concerns however with allowing practitioners to practice before the USPTO after only taking a design patent bar exam. One potential risk is that a design patent practitioner might not understand utility patents and the benefits thereof, and thus be unqualified to fully counsel clients on the best approach for protecting their invention. Others believe USPTO resources might be better served in improving diversity by encouraging more women and minorities to enter into STEM academic disciplines and careers in patent law.

The USPTO’s comment period on these proposed changes to the patent bar exam closes January 17, 2023.