Diversifying Intellectual Property Law: Why Women of Color Remain "Invisible" and How to Provide More Seats at the Table

Vol. 10 No. 4

J. Shontavia Johnson is the Associate Vice President for Academic Partnerships and Innovation at Clemson University; visit her website www.shontavia.com or follow her on Twitter @ShontaviaJEsq.

Tonya M. Evans is a professor of law at University of New Hampshire School of Law and owner of Legal Write Publications; follow her on Twitter @IPProfEvans.

Yolanda M. King is the interim assistant dean for student affairs and an associate professor of law at Northern Illinois University College of Law.

Law is America’s least diverse profession. According to the American Bar Association (ABA), 85 percent of all lawyers in America are white, and 65 percent are men. And lawyer demographics have not changed much in at least a decade.1 While the profession has made some efforts toward increasing diversity and embracing inclusion, its membership does not yet reflect the increasingly global and diverse clientele that it serves.2 As a result, the percentage of women of color practicing law in every sector remains disproportionately small and undeniably stunted.

Nowhere is this more apparent than within the field of intellectual property (IP), both in practice and in legal academia.3 Women of color, in particular, are significantly underrepresented in a practice area where population growth and globalization are making diverse legal representation increasingly important, if not critical, for business success.4 In fact, IP-intensive industries—those relying most heavily on copyrights, patents, and trademarks for economic growth—remain “a major, integral and growing part of the U.S. economy,” as asserted by the Department of Commerce in its report Intellectual Property and the U.S. Economy: 2016 Update.5 However, while both the American population and American business interests are becoming more diverse, the IP field has not followed suit.6

Ignoring Women of Color in IP— Existing Data and Missing Data

On one hand, IP law is booming as one of the fastest growing legal practice areas. The American economy has continued to grow in the technology and information sectors, and the need for IP attorneys has followed suit. In recent years, intellectual property has accounted for nearly 20 percent of legal job openings even though IP attorneys make up a small percentage of the legal field. Of roughly 1.3 million licensed US attorneys,7 United States Patent and Trademark Office (USPTO) records identify only about 34,000 as being registered patent attorneys—less than 3 percent of all licensed attorneys in the country.8 Given these statistics, IP attorneys often have good odds of finding and maintaining employment.

On the other hand, even with such growth, diversity in the IP field has lagged. According to American Intellectual Property Law Association (AIPLA) data, the IP field is overwhelmingly white and male.9 The AIPLA 2017 Report of the Economic Survey, which focuses exclusively on law firm demographics, shows that 1.8 percent of IP attorneys are African American, 2.5 percent are Hispanic or Latino, and less than 0.5 percent are Native American. According to this same report, 70 percent of IP attorneys in law firms are male.10

There is scant intersectional data related to the combination of race and gender among IP attorneys, so it is not clear how many women of color are practicing IP attorneys. Much of the current research either: (1) refers to “minorities” as one monolithic group representing diversity, including both men and women; or (2) focuses generically on women, ignoring the racial and ethnic stratifications that exist among women IP attorneys. The anecdotal evidence, however, suggests that representation of women of color lags far behind other groups in general.11

This lack of data is problematic given that empirical information is critical to develop successful strategies to attract, hire, retain, and promote women of color in the practice areas that involve copyright, patent, trademark, and related fields like privacy, technology, and innovation law. While IP attorneys can, of course, face similar racial or gender biases in their careers, there are distinctions between the experiences of women of color and their white and/or male counterparts.12 Women of color face a double dose of both race and gender bias in the workplace, which can impact them in ways that men of color or white women do not face.13

This intersectionality conundrum makes the experiences of women of color unique and necessitates a unique strategy to diversify the IP field across all related disciplines. Given this reality, diversity and inclusion efforts cannot exist in a one-size-fits-all type of vacuum. According to Dr. Arin Reeves, an expert on gender biases, diversity and inclusion efforts affect the majority of the people in that specific category.14 Under such logic, “minority” efforts largely benefit minority men, and women-specific strategies largely benefit white women.15 It is no wonder that women of color have statistically lagged behind their colleagues in terms of representation. Given this reality, quantitative data about women of color would provide better foundational context to tackle the issues revolving specifically around diversity and inclusion efforts for this uniquely situated group.

Why the IP Field Needs Women of Color

Even without specific data related to women of color in intellectual property, it is clear that the group is significantly underrepresented even though the industries feeding clients to IP lawyers are diversifying quickly. Diversity in the US population overall is, quite literally, shifting the IP landscape. According to the US Census Bureau, people of color will represent a majority of the American population by 2044.16 Diversity and inclusion efforts that incorporate women of color will, of course, better reflect the country’s demographics and, presumably, invite these women to bring different perspectives and offer solutions that may not otherwise be proposed.

However, such efforts in the IP field should be more than just a means of providing visible evidence of social progressiveness. Diversity and inclusion efforts are becoming economically imperative to do business in a global society. The IP field needs more women of color because clients are requiring more diverse representation.

For example, the pool of clients in the various sectors that make up the IP field (or IP-intensive industries) come largely from the technology, business, and entrepreneurship sectors. While these industries have historically been white and male, the demographics of these industries are changing. Foreign-born innovators currently make up more than one-third of all innovators in America.17 In the entrepreneurship space, women of color are more likely to own businesses than women overall.18 In addition, corporate and in-house counsel, who are typically responsible for retaining outside IP counsel, are also becoming more diverse in terms of both gender and race.19 These potential clients want counsel and law firms who reflect their backgrounds, and they are seeking these lawyers in increasing numbers.20

What is more, corporations, including large tech companies with vast IP portfolios, are now requiring that their outside law firms have measurable numbers of diverse attorneys and strategies that do more than just pay lip service to diversity.21 For example, Facebook Inc. has announced a requirement that “women and ethnic minorities account for at least 33 percent of law firm teams working on its matters.”22 In addition, law firms representing Facebook must prove that they “actively identify and create clear and measurable leadership opportunities for women and minorities.”23

Others, like the Hewlett-Packard Company (HP), have taken additional steps regarding diversity. HP recently informed its outside counsel that it may withhold up to 10 percent of invoiced fees for failure to meet its “diversity holdback” mandate, which applies to all US-based law firms with at least 10 lawyers.24 The mandate requires that the law firms “field (i) at least one diverse firm relationship partner, regularly engaged with HP on billing and staffing issues; or (ii) at least one woman and one racially/ethnically diverse attorney, each performing or managing at least 10% of the billable hours worked on HP matters.”25 Still other companies, like Shell Oil Company, Wells Fargo & Company, the Coca-Cola Company, and Merck & Co., evaluate the diversity data of their outside counsel.

Potential clients are using diversity and inclusion data to both differentiate among potential legal counsel and hold them accountable once hired. Women of color offer an opportunity for intersectional diversity that is seemingly lacking in today’s IP landscape, even though clients are beginning to demand it.

Bringing More Women of Color to the Table in IP

Diversifying the IP field to include more women of color will take separate, targeted efforts if legal service providers do not want to miss real business development and client engagement opportunities. Such efforts include: (1) supporting science, technology, and engineering pipeline opportunities; (2) constructing mentorship and professional opportunities for women of color law students; and (3) developing mentorship and business development opportunities for women of color IP attorneys. No effort, however, can achieve sustained and meaningful success without significant inroads into dismantling systemic barriers that have historically rendered women of color invisible in the practice of law generally and, in turn, the practice of IP law.

Supporting Science, Technology, and Engineering Pipeline Opportunities

Science, technology, or engineering degrees are often considered unofficial prerequisites for IP careers—likely because of the requirements to practice in patent cases before the USPTO. The vast majority of people meet these requirements by obtaining one of the scientific or technical degrees outlined by the USPTO Office of Enrollment and Discipline.26 While these degrees are not required to practice trademark or copyright law, there can be some overlap with these disciplines among attorneys who practice patent law.

Women have obtained parity with men in obtaining science and engineering degrees.27 Though people of color account for disproportionately small percentages of these degrees, women of color earn a higher proportion of science and engineering degrees than their male colleagues at every level—from bachelors and masters to doctorate degrees.28 As such, there is a robust and growing group of women of color who can and should be introduced to the possibility of IP careers early in the educational process—even and especially prior to law school.

Unlike some other legal disciplines, undergraduate and graduate students do not always have a working familiarity with the substance of IP law or what a career in the field might look like. Supporting pipeline opportunities, which would serve to introduce science and engineering majors to IP careers, would provide IP professionals an opportunity to connect early with women of color who may be interested in pursuing such careers. The legal academy could also do more to ensure that IP courses are part of every law student’s core curriculum. Law school administrators and faculty could commit to partnering with primary and secondary educational institutions—especially institutions with a critical mass of women of color—to create and sustain the essential pipeline of talent, a shortage of which is too often cited as the “real problem” whenever confronted with lack of diversity and inclusion concerns.29

Mentorship and Professional Opportunities for Women of Color Law Students

For the first time in history, women currently make up a slight majority of all American law students.30 The number of people of color attending law school is also rising.31 This diversification in law schools can be used to similarly diversify the IP field, as women of color are easier than ever to identify as candidates for mentoring and/or professional opportunities.

Several organizations support diversity in the IP field through scholarships, professional opportunities, and mentoring, including the American Intellectual Property Law Education Foundation and the Hispanic National Bar Association/Microsoft Intellectual Property Law Institute. In addition, law firms like Banner & Witcoff, Finnegan, and Fish & Richardson offer scholarships, fellowships, or summer opportunities to diverse students interested in intellectual property.

These organizations and programs, and others like them, have taken significant steps in the right direction. However, if women of color are to be recruited and retained at high rates, such programs should also incorporate opportunities specifically geared toward this group.

Mentorship and Business Development Opportunities for Women of Color IP Attorneys

The IP field requires a certain level of dynamism among its practitioners—technology and innovation move quickly and lawyers working in those spaces must be able to similarly adapt and think quickly. IP practitioners are typically quite successful in these efforts. Unfortunately, the efforts to diversify the IP community have not been as successful.

Even though diversity and inclusion are “necessary for corporations to stay competitive in global markets, law firms are still facing a disconnect” in making such efforts a priority and an integral part of their day-to-day business plans and pursuits.32 The failure of the industry to remain nimble and to pivot with the clear trend of the broader industry may become less of a problem as more clients require tangible, meaningful diversity efforts from their lawyers and law firms. Decision makers in the legal profession and legal academy will either choose to evolve and embrace the value of diversity and inclusive excellence or they will choose to be left behind as the twentieth-century status quo of IP practice falls into obsolescence. In developing such efforts specifically in the IP field, creating mentorship and business development opportunities for women of color in practice and academia will ensure that law firms are not merely paying lip service to diversity, but truly making positive, institutional changes to make the invisible woman visible.

Endnotes

1. Am. Bar Ass’n, ABA National Lawyer Population Survey: 10-Year Trend in Lawyer Demographics (2017), https://www.americanbar.org/content/dam/aba/administrative/market_research/national-lawyer-population-10-year-demographics-revised.authcheckdam.pdf.

2. The American Bar Association, for example, has created several diversity resources, including the Office of Diversity and Inclusion, Commission on Disability Rights, Center for Racial and Ethnic Diversity, Commission on Women in the Profession, Commission on Sexual Orientation and Gender Identity, and Task Force on Gender Equity. There are also numerous affinity groups for lawyers, including the National Bar Association, Hispanic National Bar Association, National Asian Pacific American Bar Association, National Native American Bar Association, National LGBT Bar Association, National Association of Women Lawyers, and National Conference of Women’s Bar Associations. Even with all of these efforts, lawyer demographics have not moved more than five percentage points in the past 10 years.

3. Case in point: one of the three coauthors of this article (Evans of UNH Law) is the only African-American professor on her faculty, while another (Johnson, currently of Clemson University, but formerly of Drake Law) was the only African-American woman on her faculty during her previous employment.

4. Ahmed J. Davis & Priyam Bhargava, How Globalization Has Shifted the Paradigm of Diversity Inclusion in Intellectual Property Law, 8 Landslide, no. 1, Sept./Oct. 2015, at 51.

5. Dep’t of Commerce, Intellectual Property and the U.S. Economy: 2016 Update 1 (2016), https://www.uspto.gov/sites/default/files/documents/IPandtheUSEconomySept2016.pdf. (“[T]he 81 industries designated as IP-intensive directly accounted for 27.9 million jobs and indirectly supported an additional 17.6 million jobs in 2014. Together, this represented 29.8 percent of all jobs in the U.S. The total value added by IP-intensive industries amounted to 38.2 percent of U.S. GDP and IP-intensive industries paid 47 percent higher weekly wages compared to other industries. Further, at $842 billion the merchandise exports of IP-intensive industries made up 52 percent of total U.S. merchandise exports. Exports of service-providing IP-intensive industries totaled about $81 billion in 2012, accounting for 12.3 percent of total U.S. private exports in services.”).

6. See Davis & Bhargava, supra note 4, at 51 (noting growth in both Latin American and African American populations and that “worldwide American companies in the Standard & Poor’s 500 (S&P 500) had more than 55 percent of their total income earned outside the United States”).

7. Am. Bar Ass’n, ABA National Lawyer Population Survey: Historical Trend in Total National Lawyer Population, 1878–2017 (2017), https://www.americanbar.org/content/dam/aba/administrative/market_research/Total%20National%20Lawyer%20Population%201878-2017.authcheckdam.pdf.

8. Practitioner Roster, USPTO Off. Enrollment & Discipline, https://oedci.uspto.gov/OEDCI/practitionerRoster (last visited Jan. 9, 2018).

9. Am. Intellectual Prop. Law Ass’n, 2017 Report of the Economic Survey, at F-11 (2017).

10. Id. at F-10.

11. There are groups like the National Association of Women Lawyers, Minority Corporate Counsel Association, and National Association for Law Placement that aggregate combined statistics on race and gender in law firms and corporate America. Data from these groups indicates that representation of women of color lags significantly behind other women. See, e.g., Nat’l Ass’n of Women Lawyers, Report of the 2017 NAWL Survey on Promotion and Retention of Women in Law Firms 4–5 (2017), http://www.nawl.org/p/cm/ld/fid=1163 (noting that “[w]hite women represent 88 percent of women equity partners . . . [while] women of color . . . represent only 12 percent of women equity partners”). In addition, men of color are seemingly represented in the legal profession at much higher rates. For example, African American men make up 1.7 percent of all large law firm managing partners, but there are no African American women in similar roles. See Vivia Chen, It’s Lonely at the Top for Big Law’s Few Black Leaders, Am. Law. (Nov. 2, 2017), https://www.law.com/americanlawyer/sites/americanlawyer/2017/11/02/its-lonely-at-the-top-for-big-laws-few-black-leaders/.

12. See Kara Hagen, An Essay on Women and Intellectual Property Law: The Challenges Faced by Female Attorneys Pursuing Careers in Intellectual Property, 15 Santa Clara High Tech. L.J. 139, 140 (1999).

13. Id. at 140 & n.2.

14. See Liane Jackson, Minority Women Are Disappearing from BigLaw—and Here’s Why, A.B.A. J. (Mar. 2016), http://www.abajournal.com/magazine/article/minority_women_are_disappearing_from_biglaw_and_heres_why.

15. Id.

16. Sandra L. Colby & Jennifer M. Ortman, U.S. Census Bureau, Projections of the Size and Composition of the U.S. Population: 2014 to 2060, at 1, 9 (2015), https://www.census.gov/content/dam/Census/library/publications/2015/demo/p25-1143.pdf.

17. Adams Nager et al., Info. Tech. & Innovation Found., The Demographics of Innovation in the United States (2016), http://www2.itif.org/2016-demographics-of-innovation.pdf.

18. Emily Fetsch, Women of Color in Entrepreneurship: New SBO Data and What It Means for the Economy, Ewing Marion Kauffman Found. (Sept. 17, 2015), http://www.kauffman.org/blogs/growthology/2015/09/women-of-color-in-entrepreneurship-new-sbo-data-and-what-it-means-for-the-economy.

19. See Roy S. Ginsburg et al., Diversity Makes Cents: The Business Case for Diversity, Paper Presented at the ABA Section of Litigation Annual Conference 3 (Apr. 2014), https://www.americanbar.org/content/dam/aba/administrative/litigation/materials/2014/2014_sac/2014_sac/diversity_makes_cents.pdf.

20. Id.

21. See id.

22. Ellen Rosen, Facebook Pushes Outside Law Firms to Become More Diverse, N.Y. Times, Apr. 2, 2017, https://www.nytimes.com/2017/04/02/business/dealbook/facebook-pushes-outside-law-firms-to-become-more-diverse.html?smid=pl-share.

23. Id.

24. Debra Cassens Weiss, HP General Counsel Tells Law Firms to Meet Diversity Mandate or Forfeit Up to 10% of Fees, A.B.A. J. (Feb. 15, 2017), http://www.abajournal.com/news/article/hp_general_counsel_tells_law_firms_to_meet_diversity_mandate_or_forfeit_up.

25. Id.

26. USPTO Office of Enrollment & Discipline, General Requirements Bulletin for Admission to the Examination for Registration to Practice in Patent Cases before the United States Patent and Trademark Office (2017), https://www.uspto.gov/sites/default/files/OED_GRB.pdf.

27. Nat’l Ctr. for Sci. & Eng’g Statistics, Women, Minorities, and Persons with Disabilities in Science and Engineering (2017), https://nsf.gov/statistics/2017/nsf17310/.

28. Id.

29. See Aaron Taylor, For Diversity: Lets Talk Less about Pipelines and More about Why Blacks Are Not Admitted, Nat’l Jurist (Aug. 7, 2017), http://www.nationaljurist.com/national-jurist-magazine/diversity-lets-talk-less-about-pipelines-and-more-about-why-blacks-are-not; see also Ellen McGirt, LinkedIn’s New Diversity Report and the “Pipeline” Myth, Fortune (Oct. 19, 2016), http://fortune.com/2016/10/19/linkedins-new-diversity-report-pipeline-myth/.

30. Elizabeth Olson, Women Make Up Majority of U.S. Law Students for First Time, N.Y. Times, Dec. 16, 2016, https://www.nytimes.com/2016/12/16/business/dealbook/women-majority-of-us-law-students-first-time.html.

31. While diversity is generally improving at law schools, this is not true at the most prestigious, top-tier law schools. See Karen Sloan, Law School Diversity Improves—But Only at the Bottom, Nat’l L.J. (Feb. 10, 2015), https://www.law.com/nationallawjournal/almID/1202717561690/.

32. See Davis & Bhargava, supra note 4, at 53.

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