In September 2021, Burford Managing Director Katharine Wolanyk directed questions concerning diversity in intellectual property to a respected group of IP and patent professionals. Their perspectives are excerpted and gathered below.
There’s a significant gender gap in the business of law—but gender disparity is particularly stark in patent law. Why?
Lisa Ferri: While the legal field is more conscious today of the institutional obstacles experienced generally by women lawyers, patent law has additional barriers to entry that exacerbate the gender gap that already exists in the practice of law. To practice before the US Patent & Trademark Office (USPTO), individuals must pass the patent bar exam, but to sit for the exam you must have a technical background, such as a degree in engineering, chemistry, biology and the like. These requirements drastically narrow the pool of candidates, as there are fewer women graduating from the science, technology, engineering, and math (STEM) fields. The numbers bear this out and can be discouraging—the USPTO has reported that women constitute roughly 18% of the patent bar and 10% of the attorneys arguing before the Patent Trials and Appeals Board (PTAB).
This gender disparity is not limited to patent practice before the USPTO but is especially evident in law firm patent litigation practices. Firms, for the most part, hire only patent bar admitted lawyers into their patent practices. This barrier makes it more difficult to reach gender parity in law firm patent departments—which already suffer from the same retention issues experienced across the profession.
Megan Carpenter: Gender disparity in patent law is particularly stark because the problem is squared—it’s a problem both of gender disparity in the legal services profession, and of gender disparity in STEM. Women represent 50% of law school students, but only about 20% of law firm equity partners. Women are much more likely than their male counterparts to report never serving as first chair in a litigation. One out of five women in intellectual property law report having no real book of business, which is an important metric in the race for partnership. This gender gap is compounded by the fact that women earn only 36% of all STEM degrees. Given the gender gap in legal services and in STEM, it is no surprise that only 18% of all patent lawyers are women.
Jill Bindler: There is no doubt that the gender gap in patent law is significant. I think the gender gap has been more prominent in patent law because patent lawyers have historically had an engineering or science background. Many of the patent lawyers I have worked with
over the years were working in STEM fields before law school. There is certainly a direct correlation between the dearth of women in the STEM pipeline and the number of female patent attorneys. The leadership within the companies who hire patent lawyers tend towards hiring lawyers with technical backgrounds, under the assumption they can more easily understand the technology in the suit and convey nuances to a judge or jury.
Eileen McDermott: Throughout my career as an IP trade journalist and having worked inhouse at both patent and trademark industry organizations, I have always noticed and commented on the stark difference in numbers of women trademark and copyright attorneys compared with patent. Several years ago, I interviewed Elizabeth English of the Archer School for Girls in Brentwood, California, about this persistent and multi-layered problem. She commented that, while more and more colleges and universities are focused on ensuring equal numbers of students in STEM programs, the percentages of women who actually graduate are much smaller. One problem is that there are very few women professors, and representation does matter. But she also argued that “we deliberately teach courses that are designed to ‘weed people out,’ and girls are much harder on themselves than boys. I think we’re teaching it backwards.” That’s why the Archer School model is “inquiry-based” and research-focused. When girls become immersed in science in the hands-on way that girls are less likely than boys to have been encouraged to partake in at home, they become more engaged. Perhaps getting more girls involved in STEM—and, by extension, patent law—requires doing away altogether with the patriarchal approach to education, which obviously was crafted by and tailored to a traditionally masculine ideal of achievement, to get more girls—and probably more boys, as well—involved from the start. This is unlikely to happen in the near term, but there has been a movement on the consumer side to target STEM toys and books to girls, and to encourage girls in science early, and more and more primary and middle schools have been incorporating innovative STEM programs into their curriculums. This has already resulted in increased numbers of girls and women in STEM across the board, however small the percentages remain. But institutions of higher education, companies and law firms now need to do more to encourage women to stay on and thrive through mentorship and ensure there is appropriate representation to make new hires feel welcome and inspired in their work environments.
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About the participants
Eileen McDermott is the Editor-in-Chief of IPWatchdog.com. Eileen is a veteran IP and legal journalist, having held editorial and managerial positions at several publications and industry organizations. She has acted as editorial consultant for the International Trademark Association (INTA) and as a freelance editor for the World Intellectual Property Organization (WIPO).
Jill Bindler is a partner at Gray Reed and the firm’s go-to advisor on all aspects of e-discovery in litigation and investigations involving complex, high-volume document production obligations. An accomplished trial lawyer, she achieved favorable results in numerous complex commercial litigation and patent infringement matters.
Lisa Ferri is global co-chair of the Mayer Brown’s Intellectual Property practice and Life Sciences group. She serves as lead trial and appellate counsel on behalf of high-profile companies in the pharmaceutical, biotechnology and medical device industries. She also serves
as Chair of the firm's global Women's Leadership Committee and the New York Office Women's Forum and as a member of the firm's Diversity Steering Board.
Megan Carpenter is the Dean of the University of New Hampshire Franklin Pierce School of Law and an internationally known expert in intellectual property, with particular interests in entrepreneurship, branding and the arts.