©2013. Published in Landslide, Vol. 5, No. 4, March/April 2013, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.
Patent law has traditionally been one of the most male- dominated fields of legal practice, so here is good news on the diversity front: More women are entering the field of patent law than ever before. In recent years, more than 25% of all patent practitioners newly admitted to practice before the United States Patent and Trademark Office (USPTO) are female.1 Although it has not happened overnight, and still falls short of the 33% that women represent across the legal profession, this is a marked increase over prior decades when women were few and far between in the patent ranks.
Undoubtedly, one reason for the gender balance we find in patent law is the technical requirement for patent bar admission, and a corresponding lack of women filling the pipeline in STEM fields—science, technology, engineering, and math. However, this is part myth and part truth. It is absolutely true that women are woefully underrepresented in engineering, and also in computer science—a trend that does not seem to be changing. It is absolutely not true that women are underrepresented in science generally. In fact, it is well documented that women far outnumber men as degree earners in numerous areas of scientific study, particularly in life sciences. This will be discussed in greater detail later.
Along with the fact that more women are entering the field of patent law, the other good news is that this growth and diversification of the workforce is happening just in time. Our patent system is at a tipping point, and you do not have to work in the field of intellectual property law to know this. Just read the headlines. Whether it is the America Invents Act, the crushing backlog of applications at the USPTO, smartphone patent wars, global technical competitiveness, or the Supreme Court’s docket, it is nearly impossible to turn the page of any newspaper without encountering a story about the importance of patents and their impact on our innovation economy.
It is an exciting and busy time. U.S. patent activity is up across the board—a trend that continues year after year. In 2012, more applications were filed and more patents were issued than any year prior at the USPTO, which remains the single largest filing office in the world after China and Japan.2 At the same time, U.S. patent law is being significantly reformed through a phased implementation of the Leahy-Smith America Invents Act (AIA), signed into law by President Obama in September 2011. After many years of failed attempts at legislating patent reform, the AIA brings the most dramatic changes to the U.S. patent system since at least 1952, when Harry S. Truman was president, Elizabeth II became the queen of England, the first microwave oven (the size of a refrigerator) was invented, and gas cost 20 cents a gallon. While the impact of the AIA is already being seen in day-to-day patent practice, the full impact will take decades to be seen. Enacting the patent reform law was only the first step. Seeing how it plays out in practice is where things really get interesting. Challenges and complexities abound.
Why Workforce Diversity Is Important
Simply put, diversity in the patent workforce is important because we are facing monumental challenges and unchartered territory in our patent system, and a lot is riding on whether we get this right. It is cognitive diversity that is most important—the ability to see and interpret problems differently, such that we envision a broader set of possible outcomes and solutions. We will not achieve the outcomes that are desired and necessary from our patent system moving forward without new ideas and approaches for accomplishing those outcomes.
While cognitive diversity can be distinguished from identity diversity (for example, diversity along identity characteristics such as race, ethnicity, gender, religion, etc.), we know that differing identity characteristics tend to foster a range of experiences, perspectives, and problem-solving approaches within individuals that will move us collectively toward cognitive diversity. In short, identity diversity across the patent workforce introduces a greater range of diverse perspectives, diverse perspectives lead to better outcomes, and better outcomes are the goal.3
Achieving diversity in our patent system is certainly not limited to arriving at greater gender balance in the workforce. Clearly, there is more to it. However, we know that gender diversity is an important and necessary step in the right direction, and it is achievable. All good reasons to focus on it.
Not only do women make up half the general population, but they also tend to be at least as educated as men. In fact, for the past 30 years (since the early 1980s), women in the United States have earned more bachelor’s and master’s degrees than men, and the numbers have continued to trend upward. In 2010, women earned 57.2% of bachelor’s degrees, 60.3% of master’s degrees, and 49.5% of doctorate degrees.4 However, these statistics represent degrees awarded to women across all educational fields, not specifically in science and engineering (S&E) fields that are most directly relevant to technical innovation and patent law. So, let’s look at those numbers in more detail.
Women in Science and Engineering
Educational data clearly shows that women’s academic pursuits are greater in fields other than S&E, even though in recent years the most significant growth for women has been in S&E fields. Looking at detailed data for undergraduate degrees awarded, we see that two opposite trends have emerged. One is in the life and physical sciences, where women’s participation has increased significantly, and the other is in engineering and computer science, where women’s participation remains low and is not growing.
In 2010, women earned 59% of biology degrees and 50% of chemistry degrees in the United States. At the other end of the spectrum, in the same year women earned only 18.4% of engineering degrees and 18.2% of computer science degrees. Moreover, the ratio of women in engineering has not increased at all in the past decade, and in the field of computer science it has actually decreased. In 2000, women earned 27.6% of computer science degrees, dropping to 18.2% in 2010.
In engineering, where women have historically been, and remain, in the minority despite a temporary growth spurt that took place in the decade between the mid-1970s and mid-1980s, differing levels of participation by women exist across specialized engineering disciplines. For example, although women are 18.4% of all engineering graduates, the 2010 data shows that women represent a significantly higher ratio of graduates in chemical engineering (32.1%), as compared with electrical engineering (10.7%) and mechanical engineering (11.8%).
Women of the Patent Bar
Fewer than 2.5% of attorneys licensed to practice law in the United States have the distinction of also being licensed before the USPTO to practice as patent lawyers. That is men and women combined. It is an exceptionally small sliver of the attorney pie, but for women the sliver is even smaller. Only 1.2% of female attorneys in the United States are patent attorneys. This makes them a special and rare breed.
Who are these women and what are their experiences in the field? I have been studying this topic for several years by mining data from the USPTO roster and collecting information about 100 intellectual property law firms. To do so required gender identifying more than 40,000 patent practitioners in the United States through name matching, photo identification, and review of professional biographies.
Although across the overall patent roster only about 20% of registered patent practitioners are women, the more significant finding is that the ratio of women is steadily growing. Of the patent practitioners first admitted in 2011, more than 25% are women. This signals that we can expect that the gender balance in the field is changing, with a larger ratio of women represented than ever before.
Another finding is that variation in gender distribution exists across geography, with more female patent attorneys and agents in the northeastern and western regions of the United States, as compared to the southern and midwestern regions. The five states with the largest ratios of female patents attorneys are Massachusetts, California, New Jersey, District of Columbia, and New York.
In the law firm sample, differences appear across firm types. For example, a higher percentage of female patent practitioners work in general practice law firms with intellectual property departments than in boutique law firms practicing exclusively in the intellectual property field. In fact, 13% of the boutiques studied had no female patent practitioners at all.
Finally, and not surprisingly, the educational trends previously noted carry through to the patent bar. Two-thirds of male patent practitioners in the law firm sample had an engineering degree, as compared with less than one-third of the females. Within engineering, women are more likely to have degrees in chemical engineering than electrical, mechanical, or computer engineering.
Opportunities for Women at the USPTO
The large (albeit somewhat decreasing) backlog of patent applications across a range of constantly evolving technologies creates a need at the USPTO for a highly qualified and diverse examining corps. A recent acceleration in hiring has increased the number of patent examiners on staff to nearly 8,000 as of the end of year-end 2012. There had been 6,000 five years earlier.5
Managing its workforce effectively and maintaining employee morale has not always been easy for the patent office, but improvements are being seen. In December 2012, it was announced that the USPTO ranked five out of 292 federal agency subcomponents in the federal government’s Best Places to Work report. Citing the office’s telework program as a differentiating factor for more than 64% of the workforce, the patent office boasts reduced examiner turnover, increased examiner productivity, and significant savings in overhead costs. The office is working to increase training opportunities and implement collaborative team-based approaches to projects.6
The USPTO hiring is not limited to headquarters in Northern Virginia. As new satellite offices are opened, patent jobs are being created across the country, starting with the first office in Detroit, Michigan, and expanding to future sites approved for Dallas, Texas; Denver, Colorado; and Silicon Valley, California.
Finally, the top leadership position at the USPTO, for the first time in history, is held by a woman. Teresa Stanek Rea now serves as acting undersecretary of commerce for intellectual property and acting director of the USPTO, replacing David Kappos, who left the office in January. Rea had previously served as deputy director. At the same time, Margaret A. (Peggy) Focarino continues as commissioner for patents, and Debbie Cohn, a nearly 30-year veteran of the office, is commissioner for trademarks. The office also reports that females comprise 35% of the USPTO’s employee population.7
Opportunities throughout the Innovation Ecosystem
The U.S. patent system is part of a larger innovation ecosystem, and the impact that women can make is not limited to membership in the patent bar or as an employee of the USPTO. Indeed, we need to more broadly consider the full life cycle of innovation. Women are positioned to make important contributions to the patent system as scientists, inventors, technology business executives, licensing professionals, litigators, professors, legislators, and judges. As with any ecosystem, all aspects of the environment interact and affect one another. Individuals, populations, and communities coexist and are interdependent. Diversity enhances the richness of ecosystems generally, and is no less important in the innovation ecosystem.
Three Things We Must Do
Accepting that an effective and efficient patent system is important to a strong innovation economy in our country and globally, we simply must ensure that the United States has a world-class workforce to support the full life cycle of innovation. This requires cognitive diversity across the workforce, which is more readily achieved when there is gender balance. Attracting and retaining more women in the field of patent law requires that we do at least the following three things:
Bring More Women into Engineering and Computer Science
It is time to stop generalizing that women are not represented in the STEM pipeline across the board. At best this is misleading, and at worst it is simply not true. Women are plentiful in certain areas of science, and we should acknowledge and celebrate that. It is engineering and computer science that women have managed to avoid like the plague. More specifically within engineering, we need to focus on bringing women into the fields of electrical, mechanical, and computer engineering—areas that are needed in the patent workforce and are subject to the greatest gender imbalance. By focusing the problem more narrowly, we have a better chance of solving it.
Rigorously Study Women’s Impact on the Innovation Ecosystem
The premise that I am suggesting is that diversity in the workforce leads to better outcomes. If you accept that premise, as most do who have carefully studied diversity and its effects on the quality of outcomes, then we can stop there and focus on how to achieve greater diversity in our patent workforce. However, not everyone accepts that premise, and therefore it is critical that we produce some hard evidence for those who require it. The best way to do this is to study and report on the impact of women (and other minority groups) on the innovation ecosystem, finding novel ways to quantify and qualify their contributions. There is a saying attributed to Galileo: “Count what is countable, measure what is measurable, and what is not measurable, make measurable.” This is what we must do—count and measure what can be counted and measured, including the entrance of women into innovation professions, as well as a full 360 view of their productivity, advancement, leadership impact, contributions to problem solving, and reasons for exit.
Insist That the USPTO Take a Leadership Role in the Diversity Cause
Some will say the USPTO is already doing this. I say, respectfully, that it has made some good progress, but that is still not enough. To be more specific, from an internal perspective, the USPTO is doing great things. The top three positions in the agency are held by women. The overall gender balance in the employee base is good. The USPTO has recently drafted its first Diversity and Inclusion Strategic Plan outlining its efforts to attract and engage a diverse workforce. These items are all in the plus column, and they are all internal measures. However, the opportunity lies in the USPTO’s ability to influence diversity and gender balance in the external patent workforce. It could collect and report on gender data from patent practitioners; it could issue special reports on female inventors more frequently than it does (the last one was published in 2002); it could better assist in the efforts to study women’s impact on the innovation ecosystem. The USPTO is uniquely positioned to be the thought leader, or at least a strong partner in these efforts. I hope it will accept the invitation.
1. Study on file with the author.
2. World Intell. Prop. Org., Econ. & Stat. Division, World Intellectual Property Indicators 2012 (2012), available at http://www.wipo.int/export/sites/www/freepublications/en/ intproperty/941/wipo_pub_941_2012.pdf.
3. See generally Scott E. Page,The Difference: How the Power of Diversity Creates Better Groups, Firms, Schools, and Societies (2007) (finding that diverse problem solvers with different tools consistently outperformed groups consisting of the best and brightest).
4. See generally Nat’l Sci. Found., Nat’l Center for Sci. & Engineering Stat., Science and Engineering Degrees (2010), available at http://www.nsf.gov/statistics.
5. Frederick Steckler, USPTO Named One of Federal Government’s Best Places to Work, Director’s Forum: David Kappos’ Pub. Blog (Dec. 13, 2012), http://www.uspto.gov/blog/director/entry/uspto_named_one_of_federal.
7. USPTO, Performance and Accountability Report, Fiscal Year 2012, at 53 (2012), available at http://www.uspto.gov/about/stratplan/ar/USPTOFY2012PAR.pdf.