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Gender Gap in the Patent Process

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Gender Gap in the Patent Process

This course will provide an overview of issues related to the gender gap and patents as well as patent law. The course will focus on the 2019 “Progress and Potential: A Profile of women inventors on U.S. patents” published by the United States Patent and Trademark Office (USPTO) as well as the 2020 update on women inventor-patentees. The course will then look at the gender gap and patent law, both in terms of practicing before the USPTO as well as attorneys involved in patent litigation. The course will also highlight efforts being made to close the gender gap when it comes to patents and what else may be done.

Presenters

Kirby Drake
Founder
Kirby Drake Law PLLC

Transcript

Kirby Drake - Hannah Wilkinson Slater is often celebrated as the first woman to receive a US patent. In 1793, she received a patent for a new method of producing cotton sewing thread. She was inspired in the mills run by her husband, Samuel Slater, who left England as a young apprentice undeterred by a ban preventing textile craftsmen from immigrating to the United States. Interestingly, the United States issued Hannah Wilkinson's Slater's patent to Mrs. Samuel Slater, which has created some ambiguity regarding whether she was indeed the first American female patent and inventor. Some historians prefer to award this merit to Hazel Irwin for a cheese press invention in 1808 or to Mary Dixon Keys, who in 1809 was granted a patent on a new technique for weaving straw with silk and thread to make hats. All of these women, without a doubt, were exceptional for their era. Only 72 US patents were credited to women inventors between 1790 and 1859, while men obtained 32,362 patents. Even today, women comprise a small minority of patent inventors. This fact suggests that their innovative potential is underutilized. Recent research from Opportunity Insights, a research based at Harvard university shows disparities and opportunity across gender, race and income. The researchers find that women are among the lost Einsteins. People who would contribute valuable inventions had they had early exposure to innovation and inventor role models. The research suggests harnessing under exploited talent in these groups would be valuable to spurring innovation and driving growth.

 

This next slide provides several quotes that may guide the presentation today, because general representation in invendorship, patent prosecution and patent litigation often seems to begin with STEM education. If women are not getting into STEM education, then they necessarily will not find themselves taking these roles later in life. This presentation will go through some of the issues that have been raised and that are being addressed to increase the number of women inventors, such as through the US Patent and Trademark Office or US PTO. This presentation then will focus on the patent legal profession and general representation. First, with respect to those practicing before the US PTO and patent prosecution, and then looking at patent litigation representation, The US patent system improves the lives of Americans by encouraging and strengthening innovation.

 

For the system to be most effective, all Americans to have the opportunity to reap the personal and commercial benefits of applying for and receiving patent protection. In a 2019 report, progress and potential, a profile of women inventors on US patents, the United States patent and trademark office investigated the participation of US based women and inventor patentees in the US patent system. It examined trends and characteristics of women's participation and found that women were underrepresented. Other findings generally included notable differences in the number of male and female patent inventors persist, despite greater female participation in science and engineering occupations. And in entrepreneurship. Women inventor rates are higher in technology intensive states, but also in states where more women participate in the overall workforce. Women inventors are increasingly concentrated in specific technologies and types of patenting organizations, suggesting that women are specializing where female predecessors have patented, rather than entering into more male dominated fields or firms. And women are increasingly likely to patent on large, gender mixed inventor teams, highlighting the growing importance of understanding the relationship between gender and innovative collaboration.

 

So, first we'll look at women inventor rates remaining below women's share of science and engineering jobs. It's widely recognized that many factors shape the opportunities for women to become patent inventors, educational and occupational choices are two important influences. Historically, science and engineering fields produce the most patentable inventions. Naturally, when fewer women pursue careers in science and engineering fields, they will make up a smaller share of patent inventors. To explore this further, the figure on this slide compares the women inventor patent rate with the percentage of women in science and engineering occupations based on periodic national surveys. In 2015, women made up about 28% of the total science engineering workforce, all occupations across this figure, but only 12% of inventors on granted patents, which would be the women inventor rate. Across nearly all science occupations, women participate at a much higher rate than they invent patented technology. It is only in engineering that women's workforce participation rate, which is the yellow hollow circle line, this participation rate resembles the overall women inventor rate.

 

Next we'll look at women inventors being concentrated in specific technologies and types of assignees. The figure on the slide presents the women inventor rate across broad technology categories for each of the past four decades. Although the female share of patent inventors has increased over time in each sector, moving from left to right, there is considerable variation in growth patterns. Women's inventive participation has improved the most in chemistry and design patterns, while women accounted for only 6% of inventors on chemistry patterns issued from 1977 to 1986, they comprised roughly 18% in the last decade, from 2007 to 2016. Within chemistry, certain subcategories exhibit even higher women inventor rates. In 2016 for example, women accounted for more than 1/5 of inventors, granted patents in biotechnology, which had a 25% women inventor rate. Pharmaceuticals at a 23% women inventor rate organic fine chemistry at a 21% women inventor rate. Women's participation on patents and instruments and electrical engineering has also improved, but to a lesser extent, women comprised only 12% and 11% of inventors on patents in instruments and electrical engineering respectively in the 2007 to 2016 timeframe. Among mechanical engineering patents, where inventors are the most proportionately male, There's been the slowest in improvement in women's participation. The female share of inventors on such patents was 3% in the 1977 to 1986 timeframe and only reached 8% in the last decade observed. the USPT provided an update on US women inventor patentees in early 2020.

 

This update improves our understanding of women's participation as inventor patentees in two ways. First it updates the findings from the 2019 report, using three years of new data, covering January, 2017, through December, 2019. Second, it provides an analysis of entry by women into the patent system. In particular, it looks at the number and share of new women inventor patentees, and the degree to which these women remain active by patenting again within the next five years, the updates in this report rely heavily on PatentsView, a free online pat for visualizing, disseminating and promoting a better understanding of US patent data, supported by the USPTOs office of the chief economist. There has been continued improvement in the participation of women inventor patentees. The participation of US based women in the US patent system can be evaluated using two indicators. The first is the share of patents that include at least one women inventor. This indicator counts patents and provides an output perspective on participation, but it is also influenced by other factors, such as the gender composition of inventor patentee teams and the total number of patents those teams produce.

 

The second indicator, called the Women Inventor Rate, or WIR, calculates the share of women among all inventor patentees in a given period of time. WIR indicates the proportion of unique women who are engaged in the patent system and provides an input perspective on participation. Unlike the first indicator, the WIR is independent of team gender composition, and team production, because it identifies the number of unique women inventors within a given time period. Both indicators have improved substantially since 1976, the sheriff patents with at least one woman inventor grew from 20.7% in 2016 to 21.9% by the end of 2019, and is growing faster than in the prior period, observing faster growth and patent output is certainly positive, but it's unclear whether this trend reflects the contributions of women and inventor patentees, because the dominant share of this output comes from mixed gender teams. The WIR improved from 12.1% in 2016 to 12.8% by 2019, this shows that more women are active as inventor patentees.

 

However, a WIR of 12.8% is substantially lower than other benchmarks of women's education and employment as scientists and engineers. In 2017, women held about two million science and engineering jobs, but only 27,000 women were invent patentees in that year. The share of male science and engineering job holders, who are invent patentees, was three times higher. These data suggest that expanding the pipeline through education and science and engineering jobs, while not necessary, or while necessary is not sufficient to increase the participation of women as in inventor patentees alone. We're also seeing that more women are entering and staying active in the patent system, bringing new women into the patent system is one of the most important channels for expanding women's participation as in inventor patentees, this report extends the scope of the USPTO's 2019 report, by shedding light on the flow of new, US based inventors into the patent system. In 1980, there were approximately 44,550 unique inventor patentees. This number grew to about 241,800 by 2019.

 

During that same period, the share of new inventor patentees among this group fell. To some degree, this downward trend is expected, given that the number of inventor patentees who patented again increased over time relative to the entry of new inventor patentees. However, after growing at just an average rate of 9.6% from 2009 to 2014, the number of new new inventor patentees grew at just 2.7% on average per year from 2014 to 2019. In 2019, there were about 69,080 new inventor patentees. Similar to the trend in the WIR, the share of women among all new inventor patentees increased from about 5% in 1980 to 17.3% by the end of 2019. In the five year period from 2009 to 2014, the number of new women inventor patentees grew by an average of 10.8% each year. This growth slack into 4% per year, over the next five years. Another aspect that characterizes participation as inventor patentees is whether they stay active in or drop out of the patent system. One form of staying active is to patent multiple inventions over time.

 

For this report, engagement was measured for each new inventor patentee by assessing whether that person obtained at least one more granted patent in the five years following his or her first patent. The figure here shows the percentage who remain active in the patent system within the next five years. In 1980, about 38% of those individuals stayed active. The percentage rose over time. For men inventor patentees in 2014, about 52% remained active. With women inventor patentees indicates that women are less continuously engaged in the patent system as inventors, but the engagement is growing over time. We also see that the US and most states show an improved AWIR. For the nation, women's participation as inventor patentees improved. The average women inventor patent rate, or the AWIR for 2007 to 2019 was 14.2%, which was an increase over the prior decade. However, national level improvements do not reveal state level of variation in women's participation. This could be driven by a handful of states masking important differences in the geography of women's participation. There was more than 10 percentage point difference between the highest and lowest state AWIRs.

 

In that same time period, about 42% of all US based women inventor patentees were located in four states. Three states had fewer than 50 women inventor patentees, four states had between 50 and 100 and 18 states plus the district of Columbia had between 100 and 500 women in inventor patentees. We also see that few top patent assignees surpass the national AWIR. Due to the volume of annual patent filings, the organizations that are the top patentees assignees, have a disproportionate influence on women's participation in the US patent system. For the top 29 assignees, only 11 had AWIRs above the 14.2 national percentage of AWIR. Proctor and Gamble led the group with over 29%. There are three companies that have the highest AWIR values produced diversified healthcare products and pharmaceuticals, which is consistent with the concentration of women in chemistry, biology, and related STEM fields and jobs. In contrast, women make up the smallest share of inventor patentees at companies more focused in electrical and mechanical engineering technologies. 3M companies showed the largest gain in women's participation, rising by 1.4 percentage points. The increase for Proctor and Gamble was about half as large. So we do see some increases, but then with some companies, we are seeing that they are flat or slightly down, such in the case of Qualcomm and AT&T. We look at a couple of quotes before we transition to the next section.

 

From Sina, they noted that women inventors are sticking with it. And the percentage of women inventors filing additional patents within five years of their first is on the rise. So this show's improvement in the patent field for women since the 1980s, but with Bloomberg, they say that women inventors make progress, but still lag male counterparts, noting that the share of patents with at least one woman named as inventor was 22% up from 20.7% in 2016, the World IP Review welcomed promising women and inventor numbers. And indicating that this was getting praise from the legal industry. And then finally Andrea Yakub, who is the former under secretary of commerce for IP and the director of the USPTO, noted that for us to retain our nation's edge as a global innovation leader, we need even more broader participation in patenting and making outreach to underrepresented groups a top priority. So the data indicates that we're moving in the right direction in terms of closing the gender gap when it comes to patenting inventors, however changes are still needed to stem the flow of the leaky pipeline of women inventors, fill the pipeline with new inventors and create an inclusive nature where the contributions of women inventors are sought after and valued. Such improvements are necessary for the US to continue innovating and stay competitive on the global stage. Now we'll shift gears to the patent bar. So people that practice patent prosecution before the US patent and trademark office or the USPTO. A study recently was conducted related to gender diversity and patent law, especially in terms of patent practice before the USPTO. As of December, 2012, the USPTO roster listed 41,833 actively registered practitioners, of these, 40,640 had an US address of record. Of those, a gender match was possible for 35,562.

 

The following preliminary findings were limited to US based practitioners as the dictionaries used for gender matching are themselves derived from US census data. The disparity between women and men is higher among registered attorneys than among registered agents as shown in the table here on the slide. Conversely, while more registered practitioners in general tend to be attorneys than agents, among registered practitioners, Men tend to be attorneys rather than agents by a higher margin than women do. And the chart on this next slide further breaks down that disparity comparing patent agents and patent attorneys. Comparing across technologies reveals marked differences among levels of gender diversity, in subsets of the patent bar, as shown in the figure on this slide for patents granted between 2008 to 2012, the proportions of gender matched attorneys and agents of record for granted patents were highest for drugs and medical inventions, at over 25% women and at times nearly 30%. Second highest were for chemical inventions, starting at just over 25% women, but generally declining towards 20% over the five year observation window, as shown on this slide.

 

The remaining categories were almost entirely below 15% in the representation of women, among attorneys and agents of record, with mechanical inventions the lowest at under 10% for most of the observation window. Among drugs and medical inventions, the higher representation of women was due primarily to biotechnology, inventions and drug inventions, as shown on this slide. An issue has been raised as to whether the qualifications for membership in the patent bar contribute to the gender gap in patent practice. Mary of DePaul University in 2020 published an article, "The Patent Bar Gender Gap", expanding the eligibility requirements to foster inclusion and innovation in the US patent system, in the IP Theory Journal at Indiana University, Mary Hannon has argued that qualified women are unnecessarily excluded from membership in the patent bar as a result of the perpetuation of an institutionally biased and archaic set of scientific and technology requirements by the USPTO. While the USPTO has not failed to recognize the lack of equal gender representation among innovators or inventors in the United States, it has been relatively silent on the lack of gender diversity within the patent bar.

 

Still further, even when the gender gap within the patent bar has been acknowledged. There have been few, if any attempts to abolish the systemic obstacles that seem to exclude women from their participation. We'll look at some of the obstacles that seem to be limiting women from equal participation in the patent bar and some of the possible solutions to reach higher gender inclusion. Specifically, as Mary Hannon argues, the USPTO can foster greater inclusion and innovation in the US patent system by expanding the enumerated technical degrees that automatically satisfy the scientific and technical requirements for patent bar eligibility. They can remove the undue requirements regarding program accreditation, such as for computer science degrees and some coursework requirements, and or implement an apprentice model as an alternative path to patent bar eligibility.

 

So let's look at some of these points in a little bit more detail. As will be appreciated by any patent practitioner, to be patent bar eligible in the United States, an individual must establish that he or she has the requisite scientific and technical knowledge. The USPTO sets for three categories by which potential patent practitioner can demonstrate that he or she has the qualifications for entry to the patent bar. The first category A, enumerates a number of subjects in which the evidence of bachelor's degree leads to automatic eligibility, the Office of Enrollment and Discipline, or OED at the USPTO, oversees the administration of the examination and the regulation of eligibility requirements. And they say if the degree is not listed exactly as shown in the category A list, or if the applicant has a master's degree or higher in one of the enumerated subjects, but not a bachelor's degree, the person can qualify under category B or category C, therefore, any degree, for example, biological sciences, biomedical engineering, or excuse me, bio mechanical engineering, materials engineering, pharmacy, agricultural sciences, mathematics, and even statistics, would not qualify for automatic eligibility.

 

The second category, category B, provides that an applicant with a bachelor's degree in an unenumerated subject, one that's not listed in category A, can be eligible if they can demonstrate sufficient coursework in subjects such as chemistry, physics, engineering, biology, and the like. The final category, category C, allows practical engineering or scientific experience to substitute the educational requirements of category A or category B. While the reasons women are underrepresented in the patent bar may not be due exclusively to these scientific and technical requirements, the eligibility requirements are exclusionary of women and can be considered to be responsible for some of the lack of female practitioners in the United States. This exclusion of women, as well as the silence and lack of acknowledgement is troubling in a time when there's growing recognition of the lack of gender within the patent system as a whole. A 2011 publication gender identified approximately 95% of the roster of registered patent practitioners and found that only about 18% of registered practitioners were women, as we noted on one of the earlier slides, and these numbers remain constant through the end of 2012, the study found that of the 77.5% of the roster that could be gender identified, only 18.12% were women. These statistics are reflective not only of the exclusionary scientific and technical requirements, but also the overall lack of women who pursue careers in science and engineering, as well as the lack of women who pursue careers in law.

 

It is at this intersection of the career path, science and law, where you'd find women who would pursue careers in IP law, or particularly in patent prosecution. And so if there are not significant efforts to make science and technology and or law more gender inclusive, it's unlikely the proportion of female patent practitioners will change within the near future. The USPTO is in a unique position to blaze the trail, to minimize this gender disparity with regard to reworking scientific and technical requirements to bring more women into the fold as registered patent practitioners. So we do have to acknowledge the gender gap within STEM education, to also analyze this gender gap within the patent bar, because these are gonna be the programs where the patent bar pipeline and the corresponding problems initiate. So there is a clear gender gap within the population of individuals who pursue degrees or careers in science, technology engineering, and mathematics, IE STEM. In 2016, women earned approximately half of all STEM bachelor's degrees.

 

However, the proportion of women earning these degrees varied significantly across the fields. While women earned 75% of the bachelor's degrees awarded in psychology, 55% of the bachelor's degrees awarded in biology and 55% of the bachelor's degrees awarded in social sciences, they earned only 19% of the bachelor's degrees earned in computer science and only 21% in engineering, and only 19% in the physical sciences, such as chemistry or physics. Looking at the current scientific and technical requirements, the data illuminate a serious pipeline problem for trying to get gender parody in the patent bar, because the requirements heavily favor degrees and coursework and hard sciences, such chemistry, physics and engineering. These are ones that women are statistically less likely to participate in. But if we broaden the scope of the analysis, then you go beyond things. Then we do see that there is female participation, both at the undergraduate level and in the workplace. The pipeline for women in STEM is not unlike women pursuing and maintaining professions in law, both suffer from leagues that limit the number of women that may ultimately end up practicing IP law, let alone patent law or patent prosecution, particularly once these scientific and technical requirements of the USPTO are considered.

 

Since 2016, the number of women that have gone into law school in the United States has consistently outweighed the number of men. For example, 54% of the total enrollment of first year law students in 2019 was female. However, reaching this level of gender parity in legal professions has yet to be realized. While women enter law school at higher rates than men, the associate classes private law firms have generally comprised only 45% women over the last several decades. And then we see that there is, as of prior to 2001, no significant correlation between the law school's gender composition and its US news rank. as further evidence of this leaky pipeline, as of 2019, only 38% of the legal profession was comprised of women. This is not only prevalent among law schools and entry level positions, but as well as into the highest echelons of legal profession, women make up only 23% of private practice partnership, and only 19% of private practice equity partnership. There are several reasons that are cited for why women leave legal profess at higher rates and enter illegal professions at lower rates than men. Those include work life balance, unconscious bias, and the pay gap. With respect to work life balance, this reflects the societal pressures that successful business women can often face when comes to managing and balancing familial and work commitments.

 

Well, a 2019 survey found that 82% of managing partners believe their firms were active advocates of gender diversity, only 62% of their female colleagues agreed. These statistics expose the stark unconscious bias against women in law, which is the second reason that's been cited for women leaving the profession. Then pay also between women and men in law has never reached parity. Between 2006 and 2016, women lawyers earned between 70.5% and 89.7% of their male colleagues. In 2016 specifically, the median earnings of women lawyers were merely 77.6% of the salary of their male peers. Thus the pipeline of women patent practitioners is leaking at both ends. There's fewer women that are pursuing degrees in subjects that are recognized by the USPTO's eligibility requirements. And then there's also greater numbers of women leaving the legal profession, this little chance that gender parity could be achieved in the patent bar without reworking the current scientific and technical requirements, according to Mary's study. And even with reworking, it's unlikely true gender parity will ever be achieved without addressing the greater pipeline issues of women in STEM, women in law and et cetera. But there are some opportunities to narrow this gender gap within the patent bar. Excuse me, the demographic composition of intellectual property law does not really significantly differ from the general practice of law. However, it exposes an even wider gender gap within the specialized field of law. For example, there was a 2019 report by the American Intellectual Property Law Association or AIPLA, that found the IP law, which includes patents, trademarks, copyright, licensing, litigation, prosecution, and the like is overwhelmingly white and male.

 

In particular, it found that 80% of IP attorneys were male. And about 86.5% of IP attorneys were white. Despite IP law being one of the fastest growing legal practices in the United States, of the 1.3 million licensed attorneys, there's only approximately 48,000 registered patent practitioner within the USPTO. And of course, the number of patent practitioners includes not only licensed attorneys, but also registered patent agents who do not necessarily have a law degree. Thus, even fewer of the approximately 18% of female patent practitioners are patent attorneys. Accordingly, by compounding the number of when in STEM with the number of women in law, the number of women who pursue careers in intellectual property, particularly patent prosecution is inherently limited, especially in view of the current patent bar eligibility requirements. Accordingly, you know, this is some area where many think that the USPTO needs to adopt new guidelines that can capture more of the qualified women that may or may not meet the rigorous requirements of categories, A, B and or C. Accordingly, looking at these issues as not a pipeline, but rather as a funnel, where broadening the scope of eligibility or the brim of the funnel could capture more women, perhaps leading to an increase in participation by women in the patent bar. So there's a couple of different solutions that you've seen that may foster greater gender diversity in the patent bar.

 

First solution, as we've talked about a little bit already, would be expanding the category A eligibility for being able practice at the USPTO. If they broaden this category by including more STEM and STEM adjacent bachelor's degrees, this might allow for adding more gender diversity within the patent bar. Many universities are moving in the direction of program diversification and more specialized degrees. So the number of attendees, regardless of gender, graduating with degrees in exactly one of the 32 currently enumerated degrees is going to continue to decline or at least remain stagnant. It's undisputed that some level of scientific and technical training adds value to the practice of patent prosecution, particularly for complex chemical, bio technical and software applications. But if we're limiting it to a small set of bachelor's degrees, this may block many qualified women who have the same basic scientific and critical thinking as applicants who have degrees in category A subjects.  Also the growing diversity of patent applications and business demands encourage patent agents and attorneys to look beyond their particular technical training when representing parties in the USPTO. Accordingly, if you've got a background in chemistry, it's more likely that you may draft and prosecute applications relating to more diverse fields of technology. For example, while it's unlikely that based on the degree or undergraduate coursework, a practitioner with a PhD in chemistry would draft an application for a rotary engine any better than would a practitioner with a BS degree in computer science, patent practitioners are continuously challenged to expand the breadths of their practices. Even when patent practitioners do stay in their lane, they're inevitably going to come across inventions that may fall within their general technology area, but could be so specialized within that area that their general training and experience in the technology may fail to provide any meaningful contribution to their understanding of the invention.

 

Also, you know, relaxing these stringent requirements of category A could diversify the patent bar mentorship in terms of gender, but also diversify the expertise of the patent bar, which could result in improved services to inventors. And so then this could open the door for many women to pursue patent prosecution, perhaps more than are currently pursuing this. Another solution is to remove the undue requirements on program accreditation and coursework. As mentioned earlier, with respect to computer science accreditation, this solution could have significant gender neutral effects as only about 19% of all computer science graduates are women. So this could widen the gender gap as it embraces all individuals with computer science degrees, regardless of gender. So removing accreditation requirements could cause a greater number of men with computer science degrees to be admitted.

 

However, this solution would provide an equal opportunity for the 19% of women with computer science degrees to be admitted, therefore, raising the overall number of women within the patent bar. The number of patent applications directed to the field of computer science only continues to increase, over half the annual total of issued US patents has been software related since 2012, in view of the high demand for patent practitioners with this area of expertise, there doesn't seem to be a reason why any person possessing a degree in this field should be precluded from inclusion in the patent bar. Moreover, you know, many computer science students do not enter their undergraduate computer science programs with a specific intent to become patent prosecutors, or practitioners. By the time they're exposed to this career path, may be too late to get the category B coursework at a little cost.

 

There was a person that Mary Hannon referred to in her study, Jess Myers, who was a computer science graduate. And she said, it should have been easy. I have an engineering degree and $200, notably the path to obtaining her degree in applied computer science was more rigorous than her original computer science program. But while the original computer science program was accredited, the applied computer science program was not. After obtaining her degree, she was then accepted to law school and wanted to take the patent bar before her courses began. She said she could not even get past the application because her application was rejected. She reapplied, she highlighted her relevant experience and was denied another time. Not having the requisite coursework for category B, let alone the time law student to commit to enrolling in the coursework, she gave up on a pursuit of a career in patent prosecution. So this is something that by maintaining the expectations of this coursework and accreditation, the USPTO is pushing those applicants to seek careers elsewhere.

 

Again, with respect coursework, there's some things in category B that emphasize significant training in chemistry and physics, requiring at minimum 24 credits in these subjects and less paired with a large number of biology related or engineering courses. Then it follows that immediate eligibility for some degrees that have significantly less training in those course subjects comes up. And so by removing some of these accreditation requirements, or the coursework requirements, this could have gender neutral effects, but it could result in an increased number of female and diverse candidates, resulting in an increase of overall number of women who can ultimately practice patent prosecution. Another solution is an apprentice model. Under this approach, an individual who spends a certain number of years practicing the routine tasks the patent prosecution, under the guidance of a registered patent practitioner could be eligible for the patent bar exam, regardless of their educational background. This is not a new model to the USPTO. In, in fact, back in 1922 to 1934, applicants for the patent bar demonstrated their eligibility by an apprenticeship model alone, because there was no patent bar exam. This procedure was replaced in 1934 with the registration exam. At least for a time period around 1990, the USPTO allowed individuals to become eligible for registration exam after having an apprenticeship under a registered patent attorney.

 

So this was a fourth option to categories, A, B and C, but in 2004, when the USPTO transitioned from paper to digital examinations for admission, sought comments prior to enacting its proposed rule, one comment noted that the requirement of an apprenticeship prior to him being admitted to taking examination would be a worthwhile thing. But they said that this would be administratively difficult due to the lack of any objective standards. So the USPTO's comment on this seems to fail to consider the significant advances in administrative record keeping and technology. So in the USPTO could easily implement administrative protocol to track applicant's progress in her apprenticeship, could have the applicant register with USPTO upon starting the apprenticeship, provide the name of the patent attorney or law firm with whom she'll work, require the apprenticeship last a certain amount of time and set intermediate checkpoints at which the applicant must demonstrate a certain level of objective expertise. This could increase the diversity within the practice of patent prosecution, including gender diversity. In fact, many reputable patent law firms do hire unregistered technicians as technical specialists, technical advisors, patent engineers, and et cetera, to assist in the preparation of prosecution of applications. These tasks would be no different than those assigned to registered patent agents or junior patent attorneys, with the exception of independently signing and filing papers and communicating directly with USPTO.

 

So if there was an apprenticeship model, law firms would no longer be constrained applicants who are necessarily patent bar eligible under the current requirements. This could increase and diversify the applicant pool provide firms with greater opportunities to overcome issues in the pipeline of qualified and diverse candidates, and also seek candidates for their best fits for the culture of their firm. This also could be a fiscal advantage to law firms, allowing them to dedicate more resources and training to their apprentices. But even if an apprenticeship model is adopted, there would be many law firms that still condition employment on their own technical and educational standards, depending on the needs of the firm. So there's still likely that many firms would in this change because it would have little impact on their current training regimens, but they would be able to bolster their business by bringing in a more diverse population of young professionals. Finally, we'll look at a couple of impacts, as it relates to the patent bar and gender diversity. The USPTO believes to effectuate its statutory authority to render patent applicants valuable service advice, and assistance in the presentation or prosecution of their patent applications. They must require a specific level of scientific and technical expertise. So they seem to think that there's a direct correlation between the scientific knowledge of practitioners based on the category A, B, and C requirements, and the quality of the patent process. So we would have to look at the impact of the solutions on patent quality in the United States over time. Also have to look at, you know, some of the tangible benefits that would result by relaxing the scientific and technical requirements in accordance with these proposed solutions. Does not appear that any of the proposed modifications would significantly affect patent quality.

 

We do see that, if we amend the eligibility requirements to be more inclusive, such as through the solutions described already, they might promote more inventor involvement in the patent prosecution process. In the current patent system, patent prosecutors or practitioners must collaborate with inventors on the drafting and prosecution process. As the practitioners, hand trained in the intricate details and nuances of patent law. So you don't necessarily have to be an expert, but by improving transparency and collaboration in the practitioner inventor relationship, more women inventors might be led to consider new, alternative careers in patent law over time. There are tangible benefits that could be seen in the patent by making some of these changes, we would have diverse inventors being able to substantially benefit from access to diverse patent practitioners. This also may be something that, you know, could allow, could allow people to find practitioners, perhaps that more look more like them, or understand what they're doing. Think that by increasing the number of women patent practitioners, this could blaze a trail for women inventors to envision themselves within the patent system and to pursue protection for their ideas. Women patent practitioners can leverage their access to their networks to cultivate the ideas of female inventors and not all patent worthy inventions always arise from discoveries within the STEM workplace. While many do, there are other inventions that could improve everyday life, particularly everyday lives of women.

 

 So now in the last part of this presentation, we'll look at some of the issues related to gender inequality and patent litigation. Recently, two authors, Paul and Rachel Rebouche, conducted an empirical study of gender diversity, or precisely the lack thereof among the lawyers who handle patent cases in the federal courts. And they focus particularly on appellate litigation at the federal circuit and the Supreme Court. They drew on two original data sets and found that over the past decade, 87.4% of oral arguments in patent appeals at the federal circuit have been presented by men, the numbers similar at the Supreme Court, over the past 30 years, more than 90% of the arguments in patent cases have been delivered by male attorneys. The typical explanation for these sorts of gender gaps is that men are disproportionately represented in the science and technology fields that underly a patent practice.

 

But if we look closer at the numbers, we see that gender parity exists in specific areas of patent litigation. For example, about half of the federal circuits, 12 active judges are women, and those women had more pre-appointment experience in patent law than their male counterparts. In addition, the data collected for the study demonstrated that when the government becomes involved in patent litigation, usually because the case involves the USPTO, women present oral argument at the federal circuit 48.5% of the time, more than five times as frequently as the rate for private sector litigates. Thus, the story that this tells of women being largely absent from high level patent litigation is actually a story about gender inequality among lawyers hired by private sector litigants, particularly the federal circuit's most frequent litigants, including Apple, Amazon, Google, and Samsung, all of which who have been represented by women less than 15% of their arguments over the past decade. We see that women rarely litigate patent appeals for private sector clients. And this is hard to understand why, but it seems to stem from persistent inequalities in law firm practice generally. So there are some small steps that'll be discussed here that it might increase gender balance among lawyers that are arguing patent cases and some broader structural reforms that could improve diversity across the patent bar.

 

So the study showed that the federal circuit has heard from over 6,500 individual oral arguments in patent cases, women presented only 825 of that 600, 6,500 or 12.6%. You know, usually the explanation for gender gaps like this again is that practicing patent law needs a degree in certain technical fields in which women have been historically underrepresented. But the notion that careers in patent law are only for those for backgrounds in hard sciences is increasingly wrong. In fact, many of the litigators that argue these cases at the federal circuit have no such technical background and have just been trained to argue these cases related to patent law. But if we kind of take a step back, we do see the absence of women in patent litigation, but we also see the persistent underrepresenation of women in high stakes commercial litigation more generally. This has been kind of this more, in this win or take all corporate model. Some people have referred to it as the new boys club, which is a self-serving, insular network. And the appellate patent bar is considered to be one such club. There nearly 2,800 lawyers have presented at least one argument in a federal circuit patent case over the last decade, a mere 90 lawyers account for one quarter of those arguments and of the 64 private sector lawyers in the top 90, 59 of them or 92% are men.

 

So we do see the significant gender balance at the highest levels of patent law practice. So there need to be some efforts at remaking the upper echelons of the legal profession, to be more representative of law school graduates and the population of lawyers at large. So there's a couple of different things that we see, and we'll talk about it in a little bit more detail later, but you know, courts and judges are providing some incentives for inclusion. So, you know, there's some that have made it a regular practice to offer parties additional argument time if they choose a lawyer with little experience to take the lead, whether this is going to translate to additional argument time for women remains to be seen. To that end, courts and judges could, and a few already have offer additional argument time to parties that are represented by women lawyers, as well as lawyers of color. We do see, you know, as we've talked about throughout this presentation, you know, there's gender disparities, particularly in intellectual property and patent law, women are only 30% of intellectual property attorneys at law firms, but then in intellectual property litigation, 76% of lead attorneys are male and 74 of partners on those trials are male, numerous women working in patent litigation in the late 1990s reported never appearing against or working with another female attorney. Even today, only about 17% of registered patent attorneys and 20% of patent agents are women and women make up only about 10 of total attorney appearances in the post issuance proceedings at the USPTO between 2013 and 2019. Of the 100 attorneys that had appeared in the most proceedings, only six were women. So we do see that women are pervasively absent at generally every level.

 

So looking at, you know, also at the Supreme Court, we do see that the gender qualities appear and are magnified in patent cases. The Supreme Court has started to pick up more patent cases over the last 20 years, 46 cases since 2005, as compared to 14 in the preceding two decades, accordingly, if you look at the 151 argument appearances in the Supreme Court patent cases in the data through 2019, 136 or 90.1% were by men, as it illustrated on this slide, if you exclude government lawyers, the percentage pushes even higher. In fact, 91.3% of the lawyers representing private parties in patent cases before the Supreme Court were men, though the federal circuit itself is relatively gender balanced, the bar that appears before it in patent cases is not. As the figure on this slide illustrates from 2010 to 2019. Again roughly 6,500 arguments were presented to the federal circuit and patent cases, but over 5,700 of them were by male lawyers. When you look at the trends, the picture does improve. As the figure on this slide illustrates, the proportion of women presenting arguments to the federal circuit, though small, has more than doubled in the past decade, up to 15.8% in 2019, the proportion of arguments presented by women lawyers from the private sector has increased over the past decade, but not as much as the overall numbers, higher level analysis tells a story more clearly.

 

So, as you said, 12.6% of federal circuit patent case oral arguments were presented by women attorneys through 2019. When limited to private sector attorneys, that figure drops to 8.9%. So why do women appear with disproportionate frequency among the lawyers with the most arguments before the federal circuit? Because perhaps not surprisingly, these women overwhelmingly work for the government, of the 17 women who cracked the top 90, 12 work for the federal government, all in the PTO solicitor's office. These findings suggest that the workplaces women encounter dramatically shape how they practice law. Though women are largely absent from high stakes patent litigation on behalf of large corporations, they regular present oral arguments in patent cases when the client is federal government, if the private patent bar is to become more inclusive, some of the characteristics that mark practice as a government lawyer may need to be incorporated into private practice. So looking towards a more inclusive patent bar, the study that we've referred to in this present related to patent litigation, noting that women are mostly absent from high level litigation involving private sector clients. It's not unique to patent law. There's much literature reflecting the lack of women in elite civil litigation practices. And this has been consistent across studies and time. Again, no surprise, women are disproportionately responsible for dependent care and domestic work and are penalized in the system in which success is measured by billable hours, women receive lower profile assignments, fewer networking opportunities, and the cultural of law practice is dominated by older men who pass down their work to other men. These highlight some of the cultural and structural barriers, but there are some strategies and steps that law firms, their clients, and the courts could easily take to make sure that a wider array of lawyers get opportunities to participate in patent litigation. There's also some limits of these incremental changes and some structural forms that could be necessary to create a patent bar that better reflects law school graduates and practicing lawyers.

 

So looking first at law firms, law firms must play a role to bring greater gender balance to the patent bar. We see that an incremental step would be if law firms made efforts to ensure that women gain experience making arguments before courts, this could be done through pro bono litigation. For example, the Federal Circuit Bar Association runs a program for pro bono representation of litigants in veterans benefit cases, which fall within the federal circuit's exclusive jurisdiction. So this would clearly provide a path to oral argument before the Federalist circuit, but pro bono work can only go so far. Law firms have to be prepared to credit that work in salary and promotion decisions. And it's not always the way that that happens this. Otherwise it adds to an attorney's workload at the expense of assignments with high file paying clients. And this perpetuates a cycle of exclusion from the most valued accounts. Another way that law firms can be involved is for senior, usually male attorneys to seed some oral argument responsibility and for firms to encourage and support those decisions. You know, studies show that this is something that can be good for business because increases in profitability, correlate with diversity in firm's workforces, you know, but it's going to take some time for that to happen, but to move beyond the status quo, the expectations of, and incentives for those in power have to change.

 

As for clients, there was a 2015 American Bar Association report that noted that clients can use their considerable economic clout with their law firms to insist that women be given prominent positions and significant responsibility in teams assembled by the firm for the client's matters. Some clients have started to exercise that clout, including Facebook in Microsoft and HP. In fact, in January, 2019, 170 companies signed an open letter to law firm partners, addressing the need for diversity and legal representation. The COVID pandemic may have mixed effects on whether clients can help incentivize meaningful change by the law firms they employ. On the one hand, many court proceedings are now being conducted over the internet or telephone. So it's easier for clients to observe the attorneys who represent them because they can attend the online hearings without incurring costs for travel.

 

Although years of experience may not be a perfect proxy for increased diversity. New lawyers are more likely to be women in our people of color, and a client can reward good performance by insisting that the lawyer, who probably comes with a lower billing rate in any case, be given the opportunity to argue a higher stakes matter the next time around. But then there's also issues with the courts. As I mentioned before, courts and judges are positioned to encourage diversity and inclusion among arguing attorneys in a way that clients and law firms aren't. Some judges have memorialized these preferences in standing orders and rules. They can encourage substantive participation in court proceedings by women and diverse lawyers and encourage the law firms that practice before them to do the same. And there are many opportunities, particularly in the Northern district of California and the district of Delaware and even the has taken to encourage arguments from a broader cross section of the bar. So we do see some things like that. There are ways that courts and judges, can continue to encourage spreading arguments among a variety of lawyers. And this could increase diversity at the patent bar, but unfortunately, most of these focus on less experienced lawyers rather than gender race specifically. So it may make those measures insufficient to eliminate the inequalities. Finally, there are some structural barriers that we do see in leading to gender inequality and patent litigation. With competition, with large law firms, they have profit driven bottom lines. And so this is leads to kind of a zero sum competition ethos. So success comes at the price of time, assimilation and out competing those around you. And this is something that really comes up, particularly in terms of commitment of time.

 

There's also issues about caregiving and women being more likely to have to take time away from their careers to engage in dependent or elder care than men. And so we do have that issue that continues to come along and a final vital piece of the conversation about workplace and equality, which seems to be missing from some of the data that's available on patent law, is the representation and experience of people of color. We have to acknowledge the overlapping yet distinct disadvantages of those working in a system not designed for their success, which is particularly true for women of color. Based on publicly information, there's no way to code the data for the race of lawyers who argue appellate patent cases, but even without hard numbers, we do see that there is a centrality of race, especially because without with its veneer specialization patent law, and the patent practice are often overlooked in broader critiques of the racism endemic to the legal system. So the data discussed in this presentation is consistent with a larger story about the obstacles that women and people of color face in attempting to join the upper echelon of commercial law practice and the corporate world more generally, tracking the structural barriers just discussed may bring greater equity to law practice. Hopefully law firm power brokers will embrace management based on the consensus of a broad array of decision makers and encourage reliance on coworkers rather than competition among them.

 

Scholars also need to work towards the intersectional analysis of the patent bar, both quantitatively and qualitatively, so that we best understand which reforms will best remedy inequalities that exist, in conclusion, we've come a long way when it relates to the gender gap in patents, whether it be inventorship, patent prosecution or patent litigation, however more still can be done by doing some of the items listed on this slide, we may find more women become involved in the patent process, either as inventors, filing, prosecuting patent applications or litigating patent disputes. And I hope that you'll take a look at these and think about different ways that you can maybe make an impact in them.

 

Thank you for your time and attention. If you do have any questions or would like any further information, please feel free to contact me.

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