Institutional obstacles and additional barriers are exacerbating the diversity problem in patent law, but IP officers and litigation counsel at companies, as the clients of Big Law, can have an outsized impact on the diversity make-up of their panel law firms. Though part of the solution must involve boosting the number of diverse STEM and law students, a complex process that will take time, chief IP officers can still act now and make progress. When the purchasers of legal services are prepared to ask the tough questions about diversity, law firms are more likely to act, as Nokia has shown with a diversity scorecard initiative. Plus, my employer, Burford Capital, has launched a new financing tool to incentivize companies and firms to give lead roles to diverse attorneys. Meanwhile, companies like P&G, Meta Platforms and AT&T have pledged to track and boost innovator diversity.
Why does it matter that the patent system is so overwhelmingly homogenous? Because it plays a critical role in fostering and rewarding innovation. To remain competitive in an increasingly global economy, nations need to leverage the ingenuity of their entire population, including women and racially diverse individuals.
Diversity of thought leads to more and better innovations. Diverse inventors have access to differing networks and are more in tune with female or racially diverse-focused goods and services, which might help in recognizing new patentable inventions. For example, female inventors are more likely to identify how existing treatments for non-gender-specific diseases like heart attacks and diabetes can be improved and adapted for the needs of women. Women are also more likely to test whether their inventions affect men and women differently—for example, if a drug has more adverse side effects in women than in men.
Despite these promised benefits, the IP system continues to lag on diversity.
Women constitute just about 22% of patent attorneys and agents, and 12% of PTAB attorneys. Even fewer women are named inventors on patents—making up just 13% of patentees as of 2019, according to USPTO data. Both issues were recently addressed in a much-publicized letter to the USPTO by Senators Mazie Hirono, Thom Tillis and Chris Coons. The letter highlighted the detrimental effects that gender disparity has on patenting innovations.
The situation is yet more dismal for racially diverse patent lawyers. A recent American Intellectual Property Law Association report showed that just 1.7% of intellectual property attorneys are Black and 1.9% are Hispanic or Latino. In fact,
there are more patent attorneys and agents named “Michael” in the US than there are racially diverse women.
Diversifying STEM fields is one solution
One reason behind the lack of diversity in the patent space is the small number of women and racially diverse students entering science, technology, engineering and math fields. To qualify for the patent bar exam, you must have a technical degree. Under the current USPTO rules, only certain undergraduate degrees in STEM fields automatically qualify, and many of these are in areas in which female and racially diverse candidates are underrepresented.
Only 36% of STEM-field degrees go to women, while women earn 50% of law degrees. Only a small subset of that STEM- and law-educated pool goes on to take the patent bar exam.
There have been some calls to update the list of qualifying degrees to include newer technology fields, some of which attract a higher percentage of female or racially diverse candidates. The senators’ letter also suggested that the USPTO include advanced technical degrees which women earn at a higher rate than undergraduate degrees in the same subjects. These kinds of measures would significantly improve the pipeline of female and racially diverse candidates eligible for the patent bar exam.
How IP departments can support diversity
Although boosting the STEM pipeline is complex and will move slowly, in the meantime, in-house IP departments have a lot of power and influence over the diversity of the patenting process.
One striking example of this can be seen by the new equality and diversity initiative launched by Finnish telecommunications behemoth Nokia. The company’s
Equity, Inclusion and Diversity (EID) Scorecard quantitatively and qualitatively evaluates on a quarterly basis its panel law firms’ progress toward diversity and inclusion goals. This kind of visibility from large buyers of IP legal services should provide a benchmark for patent and IP firms.
Big Tech and Big Pharma companies are increasingly seeking ways to use their influence to solve these problems. P&G, MetaPlatforms, AT&T, Blackrock and other large global companies have signed the Increasing Diversity in Innovation Pledge
to address the issue of underrepresented inventors.
Companies in the IP space can also use Burford’s Equity Project to help promote female and racially diverse representation. At Burford, I am a managing director and I lead the firm’s intellectual property and patent practice, which includes Equity Project matters. The project is designed to improve gender and racial diversity in the business of law through a $100 million capital pool earmarked for financing commercial litigation matters led by female and racially diverse lawyers. The project makes a further commitment to share some of its profits from successful matters with organizations focused on promoting underrepresented lawyers.
Burford previously earmarked $50 million to back commercial litigation and arbitration led by women. It committed more than that amount as of 31 December 2020, and just last week announced that it had surpassed $100 million in cumulative Equity Project commitments.
In-house IP teams can use Equity Project capital for matters they award to law firms that promise to put women or racially diverse litigators on their matters. The firms also must award adequate origination credit to these diverse lawyers.
In contrast to other areas of patent law, patent litigation does not require technical training nor passage of the patent bar exam. With the rise of patent litigation in the past 10-plus years, it has become an exciting practice area which is attracting more diverse attorneys. In fact, having non-technical attorneys as part of a patent trial team can facilitate better communication of complex concepts to a judge and jury, who are likely non-technical themselves.
While progress is certainly being made, there remains a long way to go to reach gender parity in this highly technical area of the law. Tools like Nokia’s diversity scorecard, the Increasing Diversity in Innovation Pledge and the Equity Project can help to improve diversity in the patenting process and lead to more and better innovations for the advancement of humankind.
This article was originally published by IAM Media and can be found here.