Patent Bar Retake Rules (2026)
Related Resource: Complete Patent Bar Exam Guide
Key Takeaways
- Current waiver in effect: For the next 12 months (as of latest USPTO announcement), you can retake immediately with only a 30-day minimum wait after any failed attempt
- Under normal rules (when waiver expires): 30-day wait after 1st-2nd failures, 90-day wait after 3rd-4th failures
- After five failed attempts, you must petition the OED Director and demonstrate preparedness before taking a sixth attempt
- Each retake requires a new $485 registration fee and complete application submission
- Wait periods begin from your exam date, not from when you receive results
- You are responsible for adhering to wait periods even if the scheduling system allows earlier dates
- Optional 2.5-hour review sessions are available within 60 days of receiving your fail notice
- No limit on retakes while the USPTO temporary waiver remains in effect
What Are the Patent Bar Retake Rules?
The USPTO Patent Bar retake policy establishes mandatory waiting periods between exam attempts, application requirements for each retake, and petition procedures after multiple failures. As of 2026, the USPTO has temporarily waived standard wait period escalations and the five-attempt limit, allowing candidates to reapply after just 30 days regardless of how many times they’ve failed—though normal restrictions will return when the waiver expires.
Current USPTO Temporary Waiver (2026)
Waiver Status and Duration
The USPTO has issued a temporary 12-month waiver of standard retake restrictions under 37 CFR § 11.7(b)(2). This waiver:
- Suspends escalating wait periods (normally 30 days, then 90 days)
- Removes the five-attempt petition requirement temporarily
- Allows 30-day minimum wait between all attempts regardless of failure count
- Remains in effect for twelve months from the announcement date
- Will eventually expire, returning to standard rules
What this means right now: If you fail the Patent Bar in 2026, you can retake it after just 30 days—whether it’s your second attempt or your eighth attempt. No petition is required regardless of how many times you’ve failed.
Why the Waiver Was Implemented
The USPTO implemented this temporary waiver to:
- Accommodate increased demand for patent practitioner registration
- Reduce administrative burden of processing petitions
- Provide flexibility during testing system transitions
- Allow faster re-entry for candidates affected by exam changes
When Normal Rules Return
Once the waiver expires (date to be announced by USPTO):
- Escalating wait periods resume: 30 days after 1st-2nd failures, 90 days after 3rd-4th
- Five-attempt limit returns: Sixth and subsequent attempts require petition
- Current applicants may be grandfathered (check USPTO guidance when waiver ends)
Critical reminder: Always check the USPTO OED website for current waiver status before registering for a retake.
Standard Retake Wait Periods (When Waiver Expires)
First and Second Failures: 30-Day Wait Period
Under normal USPTO rules (which will return after the waiver expires):
After your 1st failed attempt:
- Minimum 30-day wait before you can take the exam again
- Wait period begins the day of your unsuccessful attempt
- You can register and pay during this 30-day period
- Your scheduled exam date must be at least 30 days after your previous attempt
After your 2nd failed attempt:
- Same 30-day wait applies
- No escalation in wait time yet
- Standard registration and fee requirements
Example: You take the exam on March 1, 2026 and fail (your first attempt). The earliest you can retake it is March 31, 2026 (30 days later). If you fail again on March 31, you must wait until April 30 before your third attempt.
Third and Fourth Failures: 90-Day Wait Period
If you fail a third or fourth time, the wait period increases significantly:
After your 3rd failed attempt:
- Minimum 90-day wait before next attempt
- Substantially longer preparation period required
- All standard registration requirements apply
After your 4th failed attempt:
- Same 90-day wait applies
- This is your last attempt before petition requirement kicks in
- Consider whether additional professional tutoring is needed
Example: You fail your third attempt on June 1, 2026. The earliest you can take your fourth attempt is August 30, 2026 (90 days later).
Fifth Failure and Beyond: Petition Required
After your 5th failed attempt:
You cannot automatically register for a sixth attempt. Instead, you must:
- Submit a formal petition to the OED Director
- Demonstrate preparedness to take and pass the examination
- Pay appropriate petition fee (in addition to exam fee if approved)
- File in a timely manner according to USPTO requirements
- Wait for approval before scheduling your next attempt
The petition process is designed to ensure you have a realistic chance of passing before attempting the exam again.
Calculating Your Wait Period
The wait period calculation is precise and your responsibility to track:
Wait period begins: The date you took the unsuccessful exam (not the date you received results)
Counting days: Use calendar days, including weekends and federal holidays
Scheduling responsibility: Even if Prometric’s system allows you to schedule earlier, you are legally responsible for adhering to the mandated wait periods
Example calculation:
- Exam date: January 15, 2026 (failed – second attempt)
- Results received: January 18, 2026
- Wait period starts: January 15, 2026
- Earliest retake date: February 14, 2026 (30 days from exam date)
Number of Retake Attempts Allowed
Under Current Waiver: Unlimited Attempts
While the USPTO temporary waiver is in effect:
- No maximum limit on the number of attempts
- No petition required regardless of failure count
- 30-day wait applies to all attempts equally
- Each attempt is independent with no cumulative penalties
This means you can take the exam 6, 7, 10, or more times without special permission during the waiver period.
After Waiver Expires: Five-Attempt Limit
When normal rules return:
Attempts 1-5: You can register and take the exam following standard wait periods (30 days for attempts 1-2, 90 days for attempts 3-4, and 5)
Attempt 6 and beyond: You must petition the OED Director for permission to take additional attempts
The Petition Process for Sixth+ Attempts
If you’ve failed five times and need to petition for additional attempts:
Required petition elements:
- Formal written petition addressed to the OED Director
- Demonstration of preparedness, which may include:
- Evidence of additional coursework or training completed
- Letters from patent law instructors or mentors
- Detailed study plan showing how you’ve addressed previous weaknesses
- Professional assessment of your readiness
- Explanation of circumstances that affected previous attempts
- Appropriate petition fee (typically $400-$500, check current fee schedule)
- Supporting documentation as requested by USPTO
Timeline:
- Petitions are reviewed on a case-by-case basis
- Review period typically takes 30-60 days
- Approval is not guaranteed
- If denied, you may be able to petition again after additional preparation
Success factors: Petitions are more likely to be approved when candidates demonstrate:
- Substantial time invested in additional preparation (6+ months)
- Completion of formal patent bar prep courses
- Changes in personal circumstances that previously impacted performance
- Professional or academic support for their readiness
Registration Requirements for Each Retake
Complete New Application Required
Every retake attempt requires a full new registration regardless of how recently you last attempted:
- Log into USPTO OED system at oedci.uspto.gov
- Complete Form PTO-158B (Application for Registration)
- Verify your technical qualifications (typically pre-approved after first application)
- Pay the $485 examination fee (non-refundable)
- Receive Authorization to Test (ATT) (typically within 1-3 business days)
- Schedule with Prometric within your 90-day eligibility window
No Registration Fee Discounts
The USPTO does not offer reduced fees for retake attempts:
- Full $485 per attempt regardless of failure count
- No “frequent tester” discounts
- No refunds if you pass on a subsequent attempt after paying for multiple registrations
- Payment required before ATT issuance
Financial planning: If you anticipate possibly needing multiple attempts, budget accordingly:
- 2 attempts: $970
- 3 attempts: $1,455
- 5 attempts: $2,425 (plus review session fees)
Authorization to Test (ATT) for Retakes
After completing registration and payment:
ATT characteristics:
- Issued within 1-3 business days of registration
- Valid for 90 days from issue date
- One-time use only
- Cannot be extended (you forfeit your fee if you don’t test within 90 days)
- Specifies your MPEP edition for the exam
Strategic timing: Don’t register and pay for your retake until you’re confident you’ll be ready to test within the 90-day window. If you’re still studying, wait to register.
Technical Qualification Verification
Good news for retakes: You don’t need to resubmit proof of your Category A, B, or C technical qualifications once the USPTO has approved them initially. Your technical qualification approval remains valid indefinitely for all future exam attempts.
Scheduling Your Retake at Prometric
When You Can Schedule
During the wait period:
- You can view available testing dates and locations
- You cannot legally schedule within your mandatory wait period
- Prometric’s system may allow earlier scheduling, but you are responsible for compliance
After the wait period:
- You can schedule any available date at any Prometric testing center
- Your scheduled date must be within your 90-day ATT validity window
- Appointments are first-come, first-served
Scheduling Process
- Visit Prometric website at www.prometric.com/uspto
- Enter your ATT number and confirmation details
- Search testing centers by location (zip code or city)
- Verify available dates meet your wait period requirement
- Select date and time (typically 8 AM or 1 PM start times)
- Receive confirmation email with testing center details
Rescheduling or Canceling
More than 30 days before exam:
- Free rescheduling (unlimited times)
- Full refund available if you cancel
Less than 30 days before exam:
- $80 rescheduling fee applies
- No refund if you cancel (forfeit $485)
No-show:
- Counts as a failed attempt
- Triggers applicable wait period
- Forfeit entire $485 fee
The Optional Review Session
What Is the Review Session?
If you fail the Patent Bar exam, the USPTO offers a 2.5-hour review session where you can:
- Review questions you answered incorrectly (the specific questions you missed)
- See your incorrect answers compared to what you selected
- Identify patterns in your mistakes
- Note specific MPEP sections you struggled with
Important limitations:
- You cannot see correct answers or explanations
- You cannot see questions you answered correctly
- You cannot see questions you skipped or left blank
- You cannot take notes, photos, or record anything
- You cannot discuss questions with others afterward
Review Session Logistics
Availability:
- Must be scheduled within 60 days of receiving your fail notice
- Available at participating Prometric testing centers
- Sessions are 2.5 hours long
- Must be scheduled separately from your retake exam
Cost:
- Separate fee payable to Prometric ($210, check current pricing)
- Not included in your USPTO examination fee
- Non-refundable once scheduled
Scheduling:
- Contact Prometric directly after receiving fail notice
- Provide your exam confirmation number
- Schedule within your 60-day window
- Can be scheduled before or after your retake registration
Is the Review Session Worth It?
Consider attending if:
- You were close to passing (65-69%)
- You want to identify specific weak content areas
- You plan to retake within 90 days
- You struggled with particular question types
Skip if:
- You scored below 50% (need comprehensive review, not targeted fixes)
- You won’t retake for 6+ months (information may not be as relevant)
- You already know your major weak areas
- Budget is a significant constraint
Maximizing the review session:
- Bring a notebook to track patterns (can’t write about specific questions)
- Note which MPEP chapters appeared in your missed questions
- Pay attention to whether you missed due to time pressure, misreading, or knowledge gaps
- Use findings to create a targeted study plan for your retake
Strategic Considerations for Your Retake
How Long Should You Actually Wait?
While the current waiver allows 30-day retakes, strategic wait times vary based on your performance:
30-45 days appropriate if:
- You scored 65-69% (within 1-5 questions of passing)
- You made primarily “careless errors” rather than knowledge gaps
- You’re confident in your MPEP navigation skills
- You can dedicate 3-4 hours daily to focused review
60-90 days recommended if:
- You scored 55-64%
- You struggled with 2-3 specific MPEP chapters
- You ran out of time on the exam
- You’re balancing study with full-time work
90-120 days strongly recommended if:
- You scored below 55%
- You had fundamental knowledge gaps across multiple topics
- MPEP navigation was a significant struggle
- You need to rebuild foundational understanding
120+ days for:
- Scores below 40%
- Fifth or subsequent attempts (petition preparation if waiver expires)
- Significant life circumstances requiring attention
Adjusting Your Study Approach
If your first attempt revealed time management issues:
- Take 3-5 full-length timed practice exams under realistic conditions
- Practice speed-searching the MPEP (set 2-minute timers per search)
- Memorize key MPEP section numbers for high-frequency topics
- Develop a question triage system (answer easy questions first, flag hard ones)
If knowledge gaps were the primary issue:
- Focus 70% of study time on your weakest chapters
- Create detailed outlines of complex topics (double patenting, PCT, appeals)
- Increase practice question volume in weak areas to 200+ questions
- Consider professional tutoring for persistent trouble spots
If MPEP navigation slowed you down:
- Use only digital MPEP for all studying (simulate test conditions)
- Create a “quick reference” sheet of common section numbers (memorize this)
- Practice synonym searching (USPTO uses different terms than you might expect)
- Learn the MPEP structure (what topics are in which chapters)
If test anxiety or stress affected performance:
- Simulate test conditions at home or library (6-hour sessions with breaks)
- Practice breathing techniques for managing anxiety during the exam
- Build confidence through incremental improvements in practice scores
- Consider accommodations if you have a diagnosed condition (apply through USPTO)
Financial and Career Implications
Budgeting for multiple attempts:
- Each attempt: $485 (USPTO) + $50-80 (review session optional) + $0-200 (travel/lodging)
- Average total for 2 attempts: $1,200-1,500
- Budget at least 3 attempts if possible: $1,800-2,200
Career timeline considerations:
- Each retake delays registration by minimum 30 days (currently) or up to 90 days (after waiver)
- Some employers have patience limits (typically 3 attempts)
- Job offers may be contingent on passing within specific timeframe
- Consider impact on promotions or salary negotiations
Common Mistakes
Scheduling your retake during the mandatory wait period because Prometric’s system allowed it. Even if the online scheduling system doesn’t block you, you are legally responsible for adhering to USPTO wait period requirements. Violating this can result in invalidation of your exam attempt and loss of your $485 fee.
Rushing to retake after 30 days without identifying what went wrong. Just because you can retake after 30 days doesn’t mean you should. Take time to analyze your performance, adjust your study strategy, and ensure genuine improvement before spending another $485.
Skipping the review session to save $$$. If you scored 60-69%, that review session could be the difference between passing and failing your next attempt. The cost is minimal compared to another $485 exam fee and additional months of delayed registration.
Not tracking your attempt count carefully during the waiver period. When the waiver expires, you’ll need to know exactly how many times you’ve attempted the exam. The fifth-failure petition requirement will suddenly apply, so keep detailed records of all attempt dates.
Assuming the temporary waiver will be extended indefinitely. The USPTO has explicitly stated this is a 12-month temporary measure. Plan your retake strategy assuming normal rules (30/90-day escalating waits and five-attempt limits) will return.
Studying the exact same way for your retake. If your study method didn’t work the first time, repeating it won’t produce different results. Honest self-assessment and strategic changes are essential for retake success.
Frequently Asked Questions
Does the 30-day wait period under the current waiver apply even if I fail 5+ times?
Yes. While the waiver is in effect, all failed attempts—regardless of count—only require a 30-day wait. The five-attempt petition requirement is temporarily suspended. However, this changes once the waiver expires.
If I fail five times during the waiver period, will I need a petition for my sixth attempt?
It depends on when the waiver expires. If you attempt your sixth try before the waiver ends, no petition is needed. If the waiver expires before your sixth attempt, you’ll need to petition even though your first five attempts occurred during the waiver period. Check USPTO guidance as the expiration date approaches.
Can I take the review session more than 60 days after receiving my results?
No. The USPTO strictly enforces the 60-day window from when your results notice is mailed. After 60 days, the review session is no longer available for that exam attempt.
Do my previous scores or performance carry over to my retake?
No. Every exam attempt is completely independent. You need 70 correct answers regardless of whether you scored 69% or 40% previously. There is no partial credit or “banking” of correct answers.
What happens if I register for a retake but the waiver expires before my exam date?
Check the USPTO guidance when this situation arises. Typically, registrations made under one set of rules are honored even if rules change before the exam date, but the USPTO will issue specific guidance about the waiver transition period.
If I’m on my fourth attempt and the waiver expires, does my next wait period become 90 days?
Yes. Once normal rules resume, your wait period is determined by your total number of previous failed attempts, not just attempts after the waiver expires. Your fifth attempt would require a 90-day wait, and a sixth attempt would require a petition.
Can I petition for a waiver of the wait period in emergency circumstances?
The USPTO very rarely grants such waivers and only in extreme documented emergencies (serious illness, military deployment, etc.). Standard job-related time pressures do not qualify. Don’t count on this as a strategy.
How do employers view multiple Patent Bar attempts?
This varies significantly by employer. Many understand that the exam is difficult and don’t penalize 2-3 attempts. After 4-5 attempts, some employers may question readiness for patent prosecution work. Be honest with employers and demonstrate what you learned from each attempt.
Does the 30-day wait start from when I take the exam or when I receive results?
The wait period starts from the date you took the exam, not when you received results. This is your responsibility to track and calculate correctly.
Can I take the exam at different testing centers for different attempts?
Yes. You can test at any Prometric location nationwide for any attempt. Some candidates strategically choose less crowded testing centers or locations closer to hotels for better test-day experiences.
Your Next Attempt Can Be Your Successful Attempt
Failing the Patent Bar is frustrating, but it’s not the end of your path to becoming a registered patent practitioner. With the current temporary waiver providing flexibility, strategic preparation time, and honest assessment of what went wrong, your retake can be the exam where you pass.
Get targeted retake preparation: Visit our Patent Bar Exam preparation course for retake-specific strategies, weak area diagnostics, and practice exams designed for candidates preparing for their next attempt.
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