How to Close the Diversity Gap in American Patent Law

Last year the American Bar Association (ABA) published a report with grim findings on the lack of diversity in American patent law.[1] Building on that report and our own experience of the lack of diversity in the patent law profession, we ask what the reasons behind a largely homogenous patent bar are and what can be done to ameliorate the situation.

Overall, the legal profession is not a very diverse profession especially not in terms of racial diversity and in the patent law field things are even worse.  When we started researching this article, we were surprised to find there is no complete set of data on gender or racial diversity among patent practitioners – at least not publicly available, despite being included in bar admission information. Our blocked research attempts were soon confirmed by investigation through the US Patent and Trademark Office (“USPTO”), a U.S. intellectual property law review and the American Bar Association (“ABA”).  ABA confirmed that “granular diversity data with respect to the patent bar remains scant.”[2] Instead, researchers and commentators have attempted to collect their own data with varying completeness. It is staggering that the USPTO does not publish, nor effectively collect, statistics on diversity among patent practitioners. The data that is available though, is enough to paint a bleak picture concerning the lack of diversity among patent law practitioners. This article poses a number of solutions to this serious and impactful problem of lack of diversity among patent practitioners – a problem of profound implications.

How Bad Is It?

Gender Diversity

According to the ABA, there were 47,228 registered patent practitioners in the U.S. in 2020.[3]  (The USPTO reports that there are currently 48,601 registered patent practitioners, of which 12,698 are registered patent agents and 35,903 are registered patent attorneys.[4]) The ABA was able to obtain data for 24,589 of those practitioners through LinkedIn and other online sources and found that women make up less than 25 percent of USPTO registered patent practitioners (21.8 percent).[5] The ABA also found that “female registrations were virtually nonexistent until the early 1980s.”[6] Law360 cited a report from 2019, stating: “Only 10% of attorneys arguing at the PTAB are women.”[7] This is staggering in view of women comprising over 37 percent of attorneys nation-wide.[8] Over one in every three lawyers in the US are women – but not if you are a patent practitioner.[9]

In 2014, the John Marshall Review of Intellectual Property Law published a research report on gender diversity in the patent bar. The research was conducted by combing through the USPTO register of patent attorneys and agents and comparing the names in the register with U.S. Census Bureau data on frequencies at which name occur among women and men. The researcher found that as of 2014, only 17.20 percent of the patent attorneys and 20.35 percent of the patent agents registered with the USPTO were women.[10] Even though all the herein presented numbers are neither complete nor perfectly accurate due to the subjective manner in which they were collected, it is safe to say that women are heavily underrepresented in the patent profession in the U.S. Glancing over the Atlantic Ocean to Europe, the European Patent Office (“EPO”) reported the number of woman registered as professional representative with the EPO is 3,437 which is 27.57 percent. This means that gender diversity among patent law practitioners in Europe is significantly better than in the U.S.

Racial Diversity

The numbers are even more dismal when it comes to racial diversity. The ABA’s numbers show that “the average USPTO registration for racial minorities since 2000 has hovered around 6.5 percent.”[11] The most staggering number pertains to racially diverse women, according to the ABA’s survey from 2020: “Currently, only 1.7 percent of all registered patent attorneys and agents are racially diverse women.”[12]

Why Are the Numbers So Low?

The patent bar requires the applicant have a scientific background. Although there are several different paths to qualify to take the patent bar – as it is not necessary to have a bachelor’s degree in a classical science subject such as physics or chemistry – some commentators are of the view that the STEM (Science, Technology, Engineering, Math) background requirement keeps women and racial minorities out of the profession. Other commentators believe the USPTO’s scientific requirements are too narrow and specific. To illustrate, a degree in medicine, or in maritime engineering, does not qualify the applicant to sit for the patent bar, and neither does a master’s degree or a Ph.D. in scientific fields.

A majority of STEM students and STEM professionals are men especially in technology and math. Surely this is at least part of the explanation for the homogenous patent bar members. Yet another reason may be that many science majors do not even know that they can sit for the patent bar and become registered patent agents without a law degree. Science students may also not be aware of careers as a patent agent or patent lawyer.

The fact that patent law is a niche field of law, largely associated with White males, may very well make it less attractive for women or non-White candidates. It may be difficult to see yourself in a place where few if any body looks like you or shares your experiences. By the same token, potential patent practitioners may feel less welcome or more scrutinized. Michelle Obama was asked in an interview if she dreamt of becoming first lady, she replied: “No, I didn’t know I could be first lady, no previous first lady looked like me, or came from where I came from.”[13]

The Way Forward

What can be done, and what is being done, to increase diversity and inclusion in patent law? Should the USPTO scrap the science requirement altogether?

The USPTO is trying to induce interest in science from an early age with a specific tab on its website where kids and teens (and their teachers and parents) can surf around for “cool patents,” videos, activities, and external links to additional exciting science.[14] A consortia of elite universities has launched an online program where they too try to both induce an interest and support students between the age of 7-19 with STEM tutorials.[15]

Another initiative, specifically aimed at increasing diversity in STEM, is the www.pathwaytoscience.org website by the Institute for Broadening Participation. The website is directed to female undergraduate and graduate students and includes a plethora of STEM resources. We welcome all these initiatives and believe they can be helpful in increasing the pool of STEM students and therethrough diversity in the patent profession.

A complete scrapping of the current system is probably neither realistic nor welcome, but it would likely be the fastest way to increase diversity because it would lower the entrance barriers. The USPTO is not alone in requiring a scientific background, the EPO does it as well, as do other patent agencies around the globe. Another way forward, suggested by patent agent Mary Hannon at the law firm Marshall Gerstein & Borun LLP, is a broadening of USPTO’s science and math degree requirements, and the adoption of an apprenticeship model.[16]

We believe that an all-encompassing grip of the issue looking at every reason independently but also taken together is the right way forward. This means that a series of efforts must be taken. Congress should continue its national efforts to increase diversity among STEM students. A couple of initiatives have already been taken such as the “Building Blocks of STEM Act” from 2018, which directs the National Science Foundation to “award grants, on a competitive basis, to institutions of higher education or nonprofit organizations…, to accelerate research efforts to increase understanding of the factors that contribute to the participation of young girls in STEM activities.”[17]  Immigration reform can also be a contributing factor. By making it easier for immigrants – students and professionals – with a science background to stay and work in the United States, diversity in the patent profession may increase. Importantly, the efforts should be as concerted as possible and done on a national, regional, and local level. With greater diversity of background and education, comes greater diversity of experience, skill and thought, and will improve the profession and world overall.

Moreover, the USPTO should review the patent bar requirements to make them more cohesive and rational, and bring the various science subjects to parity with each other. This means removing its penchant for chemistry, physics, and technology over for example medicine. No doubt, work must also be done by us individuals already belonging to the profession. What can we do to make more women and more racially and ethnically diverse people feel that patent law could be something for them, and a successful, long-term career? We suggest that patent attorneys and agents increase their outreach efforts, work on removing some of its gilded image and create programs to support, guide and encourage women and diverse candidates who have entered or are contemplating entering the patent law profession. The USPTO should also make data publically available concerning gender and diversity of the patent practitioners practicing before that Agency. Supporting initiatives that encourage young people at an early stage, to understand the confluence of science and the law, is another promising avenue.

Co-Authored by Dara Onofrio, Esq. and Nafsika Karavida, Esq.

 

Bibliography

[1] E. Spector and L. Brand, “Diversity in Patent Law: A Data Analysis of Diversity in the Patent Practice by Technology Background and Region,” The American Bar Association (September 16, 2020).

[2] Ibid.

[3] Ibid.

[4]  United States Patent and Trademark Office (Information retrieved on March 23, 2021, this number changes every day.)

[5] Elaine Spector and LaTia Brand, “Diversity in Patent Law: A Data Analysis of Diversity in the Patent Practice by Technology Background and Region,” The American Bar Association (September 16, 2020).

[6] Ibid.

[7] D. Atkins, “Women IP Pros Call on USPTO to Loosen Bar Requirements,” Law360 (March 11, 2021).

[8] “ABA Profile of the Legal Profession,” The American Bar Association (2020).

[9] J. Day, “More Than 1 in 3 Lawyers Are Women,” United States Census Bureau (May 8, 2018).

[10] S. Vishnubhakat, Gender Diversity in the Patent Bar, p. 82, 14 J Marshall Rev. Intell. Prop. L. 67 (2014).

[11] E. Spector and L. Brand, Diversity in Patent Law: A Data Analysis of Diversity in the Patent Practice by Technology Background and Region, The American Bar Association (September 16, 2020).

[12] Ibid.

[13] Citation from the documentary “Michelle Obama: The World’s First Lady,” (2020).

[14] United States Patent and Trademark Office

[15] iD Tech

[16] D. Atkins, “Women IP Pros Call on USPTO to Loosen Bar Requirements,” Law360 (March 11, 2021).

[17] H.R. Rep. No. 115-558, at 2 (2018).