A friend and former colleague recently wrote suggesting that I write about the lack of gender diversity in patent law. While I know a little about the subject, I was pretty astounded to study the numbers.

The lack of women in this area of law matters for several reasons. Most fundamentally, as a MIT study entitled Lost Einsteins found back in 2018, innovation in the United States could quadruple if women, minorities, and children from low-income families became inventors at the same rate as men from high-income families.

As more and more women start their own companies, they need attorneys to advise them on intellectual property issues, including patents. One study that analyzed biomedical patents issued from 1976 to 2010 showed that female inventors are more likely to patent solutions that specifically or disproportionately affect women. Those inventors want patent attorneys who understand the issues surrounding their inventions. As this article [paywall] suggests, women are more likely to protect their inventions when they can find women to help protect them. In addition, in academic settings, because young women graduate students did not understand how to protect their own work, male professors often stole their work. This not only hurt young women in STEM financially, but discouraged them from staying in the field.

The Dire Statistics

According to the American Bar Association, 75.6% of patent attorneys are male, and only 21.8% are female. Of those 21.8%, most of them (41%) are in biotechnology fields, while only 11% are in computer science, electrical engineering, and mechanical engineering.

When you look at the number of women who are making arguments at the Federal Circuit on patent issues, the numbers are even worse, even though lawyers are not required to pass the patent bar in order to practice in federal court. One 2022 article found that, over the past decade, 87.4% of all arguments in patent appeals at the Federal Circuit were presented by men.

At the U.S. Supreme Court, more than 90% of arguments in patent cases were delivered by men.

As with similar data this newsletter recently presented on the appellate practice writ large, the numbers are considerably better when the government is involved in patent litigation (usually because the case involves the Patent and Trademark Office). When the government was involved in a case, women presented oral argument at the Federal Circuit 48.5% of the time.

Potential Reasons for the Lack of Women

Patent Bar

There are several different levels of reasons why there aren’t enough women admitted to the patent bar. Patent attorneys need a science degree (primarily engineering, chemistry, physics, computer science, and biology) and a law degree—so there are two places where women get weeded out.

Although there are increasing numbers of women majoring in science, they are not increasing nearly fast enough. According to the National Science Foundation, women make up 57.3% of bachelor’s degree recipients but only 38.6% of STEM bachelor’s degree recipients. 49.2% of women who originally intend to major in science and engineering as a first-year switch to a non-STEM major, compared to 32.5% of men. Nationally: 

• In math and statistics, 42.4% of undergraduate degrees were awarded to women.

• In the physical sciences, 39.1% of undergraduate degrees were awarded to women.

• In the computer sciences, 18.7% of undergraduate degrees were awarded to women.

• In the biological sciences, 60.5% of undergraduate degrees were awarded to women.

• In engineering, 20.9% of undergraduate degrees were awarded to women.

Second, there aren’t enough women going into patent law in law school and thereafter sitting for the patent bar. For these reasons, in 2020, citing research by DePaul University’s Mary T. Hannon, a group of Senators suggested to the PTO that it broaden the number of disciplines eligible to sit for the exam. The Senators wanted the PTO to include subjects like mathematics, where women are better represented. In fact, late last year, the Patent and Trademark Office announced it would create a new design patent bar, which could open the doors to more women without hard-science backgrounds practicing intellectual property law.

Patent Litigators

There are additional reasons why women are under-represented as patent litigators. The 2022 article discussed above attributes the lack of women patent litigators to the more general “persistent underrepresentation of women in high-stakes commercial litigation more generally.” It notes that most of the patent litigants are large technology companies with “winner take all” corporate models described in literature as a “new boys’ club”—“an insular, self-serving network that thrives on ‘masculinity contests.’”

The table below shows how few women larger companies are hiring to argue before the Federal Circuit. While pharmaceutical companies are slightly better, the numbers for technology companies are embarrassing:

In short, in bet-the-company litigation, tech companies aren’t hiring women to represent them.

What Can Make It Better

Experts have suggested a number of things that might improve the representation of women in patent law.

As referenced above, on the patent bar side, there is some being done to broaden the reach of expertise that can allow attorneys to sit for the patent bar—which should have the effect of increasing the number of women in the field. Obviously much more remains to be done to get women into STEM fields in the first place.

On the patent litigation side, as with the MDL leadership issues we discussed last week, federal judges can help. For example, several judges, as well as the Patent Trial and Appeal Board at the PTO, have made it a regular practice to offer parties additional argument time if they choose a lawyer with little experience to take the lead. They could also offer additional argument time to parties represented by women lawyers and lawyers of color.

But federal judges can only do so much. Ultimately, both the companies litigating patent issues and the law firms representing those companies must ensure that the lawyers on these bet-the-company cases are more diverse. They need to give women lawyers more argument opportunities, and to ask the white male partners who typically make them to step aside from time-to-time. Clients should also demand broader representation. As we’ve discussed in this newsletter before, clients can require—in the RFP process or otherwise—that key arguments are made by women or people of color. Even better, clients can hire law firms from the outset that reflect this diversity. While researching this article I came across Perkins Coie’s promotion of its Women Patent Law Team. It would be fantastic to see others firms do this, and clients hire these types of firms.

Of course the best way to change these statistics is to have women elevate other women. In the first issue of this newsletter, I talked about the Lead Counsel Summit, started by a group of 11 women law firm partners and seven in-house counsel to teach a hand-picked group of junior partners what it takes to be lead counsel in intellectual property cases. In addition, Elaine Spector, a partner at Harrity & Harrity, LLP, regularly posts on LinkedIn about gender diversity in patent law. In fact, from May 20-23 she will be hosting Harrity for Parity Women’s Patent Workshop, a program she started seven years ago, where she invites a small group of women for a 4-day comprehensive program on IP and patent law. Find out more about the workshop at this post.

What else do you think will change the diversity of lawyers we see in patent law?

No Comes Now Next Week!

Next week I’ll be taking Spring Break with my family, so there will not be any issues of Comes Now. I look forward to reconnecting with you when I return!

Share Comes Now!

If there are other areas of the legal profession where we find too little women, reach out! I’d love to make that topic my next issue.

If you’re enjoying this newsletter, please share it with others and encourage them to subscribe. I draft it on Beehiiv (Comes Now (beehiiv.com)) but also provide the Tuesday issue in a LinkedIn newsletter. You can subscribe to the Tuesday posts either place. I do not post Thursday’s What I’m Reading & Thinking issue on LinkedIn. You need to subscribe to the full newsletter on Beehiiv in order to receive that issue.

Have a topic you’d like me to address? Send me an email at [email protected].