Perspectives on DE&I: Candid Thoughts from the Field

In this article, adapted from the 2021 ABA-IPL Section Annual Meeting virtual program “Promoting a Culture of Inclusion & Diversity in IP Law,” five leading diverse intellectual property (IP) lawyers share their thoughts on and tips for increasing DE&I in IP law. Mareesa Frederick is a partner at Finnegan, Henderson, Farabow, Garrett & Dunner LLP. Donna Suchy is the managing counsel, intellectual property at Collins Aerospace. Dr. Keisha Hylton-Rodic is the founder and managing principal of Hylton-Rodic Law PLLC and president-elect of the Foundation for Advancement of Diversity in IP Law (FADIPL). Jonathan D. Goins is a partner at Lewis Brisbois Bisgaard & Smith LLP and vice-chair of the firm’s IP and technology practice. Angela B. Freeman is a partner in the Indianapolis office of Barnes & Thornburg LLP.

Why Is DE&I in IP Law Important?

Mareesa says DE&I initiatives “recognize the importance of bringing all voices to the table and ensuring that those voices are heard.” Her background fueled her passion for DE&I significantly. Attending a historically Black college (Spelman College) gave her a sense of the importance of being a part of a community where every voice is heard.

Donna agrees on the crucial importance of DE&I: “If we have a more diverse environment, amazing things will happen.” The more diverse your groups are, the more creative, innovative, and productive the output for your services is going to be.

Keisha adds that the data showing lack of progression on these issues is the leading driver for her involvement in DE&I initiatives. For her, the perfect profession would be that in which “we could look at each other and judge each other based on the content of our character and not bring the baggage of judging someone’s work based on their skin color or any other attributes of gender.”

In Jonathan’s case, too, diversity is a near and dear topic. He draws inspiration from past and present diverse leaders, such as Dr. Martin Luther King Jr., who said: “Every man must decide whether he will walk in the light of creative altruism or in the darkness of destructive selfishness”; Charles Hamilton Houston, who said it this way: “A lawyer is either a social engineer or a parasite on society”;¹ and Vice-President Kamala Harris, who made it timely and personal: “I may be the first, but I won’t be the last.” Jonathan urges, “We must walk as a social engineer and continue to pave the way.”

What Is “Diversity, Equity, and Inclusion” in Legal Practice?

Donna stresses that “diversity” is a broad term that is not limited to just race and gender: it “can be in many forms, including race, gender or gender identity, sexual orientation, ethnicity, language, culture, socioeconomic status, age, veteran status, and marital status (among others).” Unfortunately, some of these forms are not talked about as much.

Mareesa describes “equity” as recognizing that advantages and barriers exist and that we do not all start at the same place and then trying to correct the uneven playing field. “Equity is a commitment to ensuring a policy of equal opportunity and fair treatment for all. It is a quest to eliminate barriers that have existed which have historically prevented certain groups from fully participating in the practice of law,” she says.

Jonathan defines “inclusion” to be having “fundamental access” and the “opportunity and the knowledge for the potential growth of client development and marketing opportunities”; in other words, “we want to be in the room where it happens—period.” As he acknowledges, we still have to work with others who may not think like us. “But there is a greater good,” he says, “and that’s productivity related to financial gain and financial prosperity,” adding that even though some people may not look like you, think like you, or act like you, “they may be supportive of you once they start seeing and appreciating the business case for diversity.” Jonathan sees the formula as “taking our critical mass of diversity, taking our equity (in terms of those with more opportunities for wealth and power), and combining that to create a more inclusive environment.” Such an environment fosters growth and encourages others who may be more willing to see positive benefits, as well as the “green bottom-line” of why diversity matters.

Angela reminds us that inclusion also encompasses “a sense of belonging” or feeling welcomed. There are many attorneys and practitioners who do not feel welcomed or included or otherwise don’t feel a sense of belonging in the legal workplace. Many programs are dedicated to raising awareness of this issue, such as the FADIPL. However, there is still a significant need for DE&I within the legal field as the legal industry remains among the least diverse professions in our country.

According to a 2017 American Bar Association (ABA) report,² only 35% of the legal profession are women, an increase of just 5% since 2007. And while that 5% increase seems relatively low, many consider it to be the most significant increase in the legal profession of any diverse population. However, that 5% increase in women lawyers over the last 10–15 years represents the full scope of the entire national bar for African American or Black attorneys. Similarly, Hispanic or Latino attorneys make up only 5% of the national bar, an increase of just 1% over the last decade. There are 2% Asian American attorneys and only 1% Native American attorneys. Those numbers have not changed over the previous decade. And, of course, members of other diverse groups who are further underrepresented in the legal profession include our LGBTQ+ colleagues and lawyers with disabilities and more.

Unfortunately, and unsurprisingly, the statistics and data do not improve when you specifically focus on IP and patent practices. Even when you consider patent attorneys and agents, diversity in the patent bar is largely abysmal. Almost 93% of U.S. Patent and Trademark Office (USPTO) registrants are Caucasian.³ About 22% of them are women, which tracks with the 22% of U.S. women who are inventors of U.S. patents.⁴ That means that diverse men and women in the entire patent bar only represent about 6% of all U.S. practitioners. And only 1.7% of those are racially diverse females.

Angela believes that the data is clear: “While there is still no gender equity, Caucasian women have been the primary benefactors of any diversity efforts that have had any success to date. In contrast, diverse women remain the most underrepresented population in the legal profession. Obviously, these numbers look worse as we look beyond the most general numbers and look at executive leadership in any legal organization. So we do have quite a way to go.”

Why Are People of Color Leaving the Profession?

There are many factors that contribute to diverse practitioners exiting the legal field—some that are not always acknowledged, addressed, or expressed. Angela acknowledges that certain experiences of diverse people within the context of their work environment can be painful, humiliating, traumatizing, and often dehumanizing.

Keisha learned from a colleague of Asian descent that a prospective litigation client doubted whether she could be aggressive enough to adequately advocate on behalf of the client. There is a rather common misperception that because a woman is of Asian descent (or sometimes just because she is a woman), she doesn’t have the personality or skills to zealously advocate on behalf of a client. On the flip side, there is a misconception that if a woman of African descent zealously advocates for her client, she is angry, aggressive, or abrasive—even if she is speaking in a regular tone. “Unfortunately, making decisions based on these assumptions (whether consciously or unconsciously) punishes women in the legal field,” says Keisha.

It is important to note that everyone in the profession has some culpability for unsubstantiated assumptions concerning others when it comes to where we are as a profession today. Therefore, we can likewise each play a role in making it a better environment where everyone feels like they belong. Keisha notes, “In order to accomplish this, it’s going to take the daily reminder to ourselves that we should be mindful of the decisions we make and strive to treat each other equitably without prejudgment.”

Donna finds that eligibility can create barriers for women’s success in the patent field. While the rules concerning eligibility for sitting for the USPTO’s patent bar exam are being reconsidered, currently if a candidate does not have a hard technical background (e.g., science, technology, engineering, or math), they are largely deemed ineligible to take the USPTO’s patent bar exam, and thus cannot become a U.S. patent attorney or a patent agent. This certainly contributes to the lack of diversity in our national patent bar.

Yet another factor hurting women’s chances of success in the IP field is stress. Certainly, everyone experiences stress in this very demanding profession. But women, who still tend to be the primary caretakers for children and the elderly, tend to have an extra load of stress. Donna’s colleague, a single mom and attorney at a law firm in Dallas, shared that in order to practice in her profession, she had to go home, pick up her young child, bring her child back to the office, and let her child sleep under her desk as she finished the briefs that were necessary for the next day. That kind of barrier can contribute strongly to women leaving the profession—and it is not sustainable.

Mareesa points to the lack of role models as a factor negatively impacting diverse candidates’ ability and/or inclination to enter the profession. Surveys of elementary and high school students regarding their aims to pursue science as a career show interesting results. Among the reasons why they were not willing was that they rarely saw anyone who looked like them with a science degree. This makes sense because when you enter into a profession—or specifically as an attorney, enter into the courtroom or the boardroom—and you are always the only woman or person of color, you will begin to wonder if this is a career you should be in. Mareesa suggests that “building a pipeline of diverse students entering into patent law will help improve this lack of representation.” Providing exposure opportunities is key to encouraging diverse students to enter into IP and patent law, but we still have a long way to go.

Jonathan believes the answer lies in the lack of value of authenticity. In the American musical Hamilton, when Alexander Hamilton first meets Aaron Burr, he is excited, nervous, and extremely talkative. Burr says that Hamilton should “talk less [and] smile more.” Jonathan recollects that his own father, who was a United Methodist pastor for over 40 years, gave him similar advice when entering the legal profession: “Son, don’t talk about race, religion, or politics. Those are three explosive topics.” It can present an extreme struggle for men in IP law, particularly Black men, to reconcile questions like “Can I bring my true self to work? Can I lean in? Can I be vulnerable? Can I actually show who I really am and what I really think?” The bottom line is that the more comfortable one is in their profession, the easier it is to “talk more.” Jonathan would like to see more action to make practitioners (particularly diverse practitioners) more comfortable and unafraid to bring their true selves to work.

Where Are We Now in Terms of DE&I in IP Law?

The profession is clearly in critical need of more action. According to Angela, we particularly need “more champions—diverse champions, allies, advocates, and boots on the ground—to promote and advance diversity in a way that makes it truly the fabric of our work culture.” This action should not be just the token initiative an organization promotes every February. It is about making sincere impacts on the day-to-day lives of legal practitioners.

A recent example of such an initiative is a letter sent from the Senate to the USPTO asking about the lack of diversity in the patent bar and the underrepresentation of women in the patent bar.⁵ While women likely represent the largest diverse group, women’s concerns often reflect the concerns of other minorities or underrepresented groups in IP practice. Notably, the USPTO fully acknowledged in its response to the Senate letter that it did not have the institutional infrastructure to capture the data and statistics around diversity, whether gender diversity or, by inference, diversity of any other group.⁶ Angela thinks “we historically know that in order to bridge the gap in diversity at a systematic level, an institutional organization must first invest in an infrastructure that captures the data and stats around that. It’s hard to change something if you do not exactly know what your baseline is or where you stand, or what you can do to improve.” A takeaway from the USPTO’s admission is that one of the first actions we as an IP profession can do at an institutional or systemic level is to implement infrastructure to capture the necessary diversity metrics to track them and improve them.

How Can Law Firms Promote DE&I at an Institutional Level?

One of the bedrock institutions of the legal industry is the law firm. Most attorneys in the legal profession have had some experience working in a law firm. The ABA reports that 80% of law firms’ top 10% of highest compensated attorneys are white males,⁷ while white female lawyers only represent 13% of this group.⁸ However, we have seen key examples of how law firms are making strides to combat these numbers.

First, there needs to be a sincere commitment to DE&I originating at the highest level in the law firm. Partners need to be trained on the importance of diversity, and they should be actively developing relationships with diverse firm associates. One of the initiatives Mareesa started as her firm’s diversity partner is a sponsorship program for mid-level diverse associates. This sponsorship program pairs partners in management committees and heads of practice groups with mid-level diverse associates who are thinking about the next steps toward partnership. The associates can use these opportunities to build a relationship with and be mentored or sponsored by a partner whom they have never worked with before. For example, if an associate has only worked on a Patent Trial and Appeal Board proceeding and wants to experience an International Trade Commission trial, the partner-mentor would help the associate get such experience. Partner-mentors also work with associates to develop the soft skills necessary to become a partner and develop business, such as how to develop a book of business, how to develop relationships with clients and nonclients so they begin thinking of the associate as someone to support with substantive work, and how to develop expertise in a practice area so the associate can market themself to bring work into the firm.

Jonathan believes that visibility, access, and the opportunity to be in the room where decisions are made can make or break a diverse practitioner’s chances at success. When opportunities arise, a partner must know an associate exists in order to think of them first for a particular role or project. Incentive systems within the firm can help too. A firm operating under an informal 50/50 split policy for fees might credit 50% of the revenue and collection to the originating partner and the other 50% to the practitioner who actually does the work. Such a model incentivizes both the originator and the biller. Far too often, diverse attorneys are the biller and doing the work but getting zero origination credit.

Jonathan would also like to see more diverse attorneys on practice groups, client development committees, marketing committees, and compensation committees, with less emphasis on diverse attorneys being on diversity committees. Most law firm opportunities are taken by those who already know they exist. And such opportunities do not come from simply establishing and staffing a firm diversity committee. Having diverse practitioners (and their allies) on practice groups increases the opportunity to learn about what other practice group leaders are doing. Marketing committee meetings may provide valuable information on speaking opportunities or client trips that may generate business. In other words, diverse groups cannot and should not be solely responsible for dealing with diversity solutions. Law firms should spread the wealth of opportunities for access to other key critical committees.

How Can Corporate IP Departments Promote DE&I?

According to Donna, corporations are increasingly using diversity metrics as part of their law firm evaluations. These metrics account for how many diverse attorneys are at the firm, how many diverse attorneys are advancing to firm leadership, and, more importantly, how many diverse attorneys are working on their cases.

Many corporations also have a chief diversity officer (CDO) who may report directly to the CEO. Corporations can promote diversity by recognizing diverse talent, from recruitment of diverse candidates to retention and recognition.

As with law firms, mentorship and sponsorship are also key to promoting DE&I at the corporate level. Sponsorship is being at the table and advocating on behalf of a person in lieu of that person being present. Donna recommends that sponsors “know the sponsored person’s career objectives and keep in touch with them as they move forward in their career.”

While historically corporations have outsourced diversity issues to larger firms by keeping track of their diversity statistics (and sometimes rewarding their efforts), this approach has had very limited success in making a meaningful difference in adequately increasing diversity in the IP profession at all levels. In Keisha’s experience, “DE&I efforts are typically not made directly to small women-owned firms and minority-owned firms, or minority partners in small firms. Rather than primarily focusing on trying to influence large law firms or partnering with large diversity organizations such as NAMWOLF, corporations need to develop DE&I initiatives to directly engage minority partners and micro law firms (i.e., firms with less than three attorneys who are not eligible for NAMWOLF membership⁹). Additionally, corporations should partner with organizations that have DE&I initiatives focused on making direct connections between corporations and minority partners in small firms, women-owned micro law firms, and minority-owned micro law firms. Doing so will pay dividends in the long term and lead to a meaningful increase in diversity across the IP profession at all levels.”

Our Emphasis on DE&I Must Grow

“We have to continue pushing for diversity,” says Jonathan, “and stop assuming that everybody is automatically for diversity.” Angela emphasizes that we should pursue placing a focus on the value of working in diverse settings and getting to know people who have different backgrounds or perspectives. Making and fostering personal relationships with colleagues who are not from the same background or culture can be uncomfortable at times, but conversations are necessary and important to really get to know each other and expand one’s outlook.

Indeed, diverse groups can promote increased creativity, innovation, and productivity for the firm or organization as a whole. While there is progress, the work for increased DE&I must continue. Growth of our future IP talent pipeline truly depends on it.

Endnotes

1. See also Angela J. Scott, Human Rights Hero: The African American Social Engineer, 44 Hum. Rts. Mag., no. 4, 2019, at 26, https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/black-to-the-future-part-ii/human-rights-hero--the-african-american-social-engineer (highlighting how the contributions of African American attorneys have served as a tool for promoting equality in society).

2. Allison E. Laffey & Allison Ng, Diversity and Inclusion in the Law: Challenges and Initiatives, A.B.A. Litig. Section (May 2, 2018), https://www.americanbar.org/groups/litigation/committees/jiop/articles/2018/diversity-and-inclusion-in-the-law-challenges-and-initiatives.

3. See Elaine Spector & LaTia Brand, Diversity in Patent Law: A Data Analysis of Diversity in the Patent Practice by Technology Background and Region, Landslide, Sept./Oct. 2020, at 32, https://www.americanbar.org/groups/intellectual_property_law/publications/landslide/2020-21/september-october/diversity-patent-law-data-analysis-diversity-patent-practice-technology-background-region.

4. See Progress and Potential: 2020 Update on U.S. Women Inventor-Patentees, U.S. Pat. & Trademark Off. (July 2020), https://www.uspto.gov/ip-policy/economic-research/publications/reports/progress-potential.

5. See Marie A. Weiskopf, Senators Send Letter to USPTO Requesting Action to Remedy Gender Gap in Patent Bar, Miller Nash (Jan. 6, 2021), https://www.millernash.com/industry-news/senators-send-letter-to-uspto-requesting-action-to-remedy-gender-gap-in-patent-bar.

6. Donald Zuhn, USPTO Responds to Congressional Request for Information Regarding Criteria for Registration Examination for Admission to Patent Bar, JDSupra (Jan. 22, 2021), https://www.jdsupra.com/legalnews/uspto-responds-to-congressional-request-9631608.

7. Debra Cassens Weiss, Diversity “Bottleneck” and Minority Attrition Keep Firm Leadership Ranks White and Male, New ABA Survey Says, A.B.A. J. (Feb. 17, 2021), https://www.abajournal.com/news/article/diversity-bottleneck-and-minority-attrition-keep-law-firm-leadership-ranks-white-and-male-aba-survey-says.

8. Id.

9. See Brandon M. Fitzgerald, Minority Corp. Couns. Ass’n, Women‐ and Minority‐Owned Law Firms: Taking the Pulse (2009), https://www.mcca.com/wp-content/uploads/2018/01/2009_Research_Women_and_Minority_Law_Firms.pdf (summarizing statistics showing that the majority of women- and minority-owned firms have five or less attorneys); Application Criteria and Process, NAMWOLF, https://namwolf.org/law-firm-members/become-a-member (last visited Nov. 11, 2021).