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Key takeaways: Pushing for a diverse future in intellectual property

The gender and racial gap in patent law continues to be especially stark. Despite women making up 60% of college students and 50% of law graduates, only about 36% of STEM degrees were earned by women in 2021. The disparity is even more striking in the field of patent litigation, where only 6% of USPTO registrants are racially diverse and men outnumber women nearly five to one.

To better understand the factors contributing to these persistent gaps, and what might be done to address them a panel of legal leaders gathered recently to discuss progression and diversity in the field of intellectual property (IP). They included Burford’s Katharine Wolanyk (Managing Partner), Elizabeth Brannen (Managing Partner, Stris & Maher LLP) and Robert F. Kramer (Partner, Kramer Day).

Below are highlights from their conversation.

Institutional barriers contribute to the lack of diversity

Statistically, there are fewer women graduating from college or advanced courses with STEM degrees. As a result, there is a small pool of women graduates with technical backgrounds, and this pool gets even smaller once these women choose a focus area—very few women specialize in IP litigation. This self-filtering process is one of the contributing factors to the low percentage of female leaders in IP.

The current lack of diversity at large law firms makes it more difficult for diverse groups to advance. Since there are very few women or racially diverse lawyers in leadership positions, it is challenging to find mentors with comparable experience who can sponsor diverse groups and push companies to change the way they think about success metrics.

Common misconceptions about patent litigation

A technical degree is not required to become a patent litigator. If applicants have the required expertise and are intellectually curious, law firms should not exclude candidates from non-STEM backgrounds. Companies need a well-equipped team with both technical and non-technical skills and a diverse team is more likely to have all the required expertise it needs to succeed in a patent litigation case. 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.

Risk taking and diversity

IP litigation is often viewed as being high risk, because of the amount of capital invested in the patents themselves. Since these cases are high stakes, firms may prefer to retain the same tried and tested patent litigators (who typically fit the status quo) and create teams around them.

Additionally, since IP litigation is more time consuming and higher stakes are involved, the in-house lawyer hiring the counsel will usually want to make a “safer” choice by selecting counsel already well recognized among clients and firms. In-house lawyers should however feel empowered to hire litigation counsel they might not be familiar with but who have a good track record, and law firms should look to staff patent litigation teams with greater levels of diversity.  

Mentoring and economic incentives are needed to promote diversity  

Mentoring can encourage women and racially diverse lawyers to pursue patent litigation. Role models with an active interest in cultivating a diverse team improves the pipeline of diverse lawyers entering the patent litigation field.

Economic incentives like The Equity Project play an important role. The Equity Project is an award-winning initiative to improve diversity in the business of law by providing an economic incentive for change in leadership in commercial litigation and arbitration. Since launching The Equity Project in 2018, Burford has committed over $100 million to finance commercial litigation and arbitration led by women and racially diverse attorneys. The Equity project can help companies and firms to be more risk tolerant while encouraging greater diversity in the leadership of litigation teams and augmenting existing diversity initiatives.

For further insights, watch the full webcast: