The following article is the third of a three-part series. An abbreviated version of this article originally appeared in the Sept./Oct. 2012 issue of IAM Magazine.
In part one of this series, I explained that as a first-generation American whose parents emigrated from Haiti, the poorest country in the Western hemisphere, my mother always dreamed that her Ivy League-educated, lawyer son would become a civil rights lawyer. In an aim not to disappoint her, I explained that the civil rights movement was really about fighting for the economic rights of Black Americans. And, in the 21st century innovation-led world, economic rights are all about IP rights. Thus, as an IP lawyer, I can be a civil rights lawyer.
Also in part one, I pointed out the “gaps” or “divides” in our lexicon that measure the opportunity (or lack thereof) that certain populations have for economic success. These disparities include the “digital divide,” “education gap” and “wealth gap” that exist between the Black and White populations in the U.S. I also gave some historical perspective on the negative views of Black intellectual capacity against which we can look to the convergence of intellectual property (IP) with identity politics in assessing the current state of affairs.
In part two of this series, in my quest to determine if IP rights should be the new civil rights in America, I defined a new gap – the “Innovation Gap” – that focuses on the currency of our 21st century economy: “Innovation Gap: Disparities between classes of people, caused by societal hindrances, which prevent them from securing the IP rights necessary to economically exploit the fruits of their creativity.”
Now, I offer suggestions on how to bridge America’s innovation gap.
There can be no doubt that the innovation gap is an enormous multi-faceted, socio-economic problem. Such a problem will likely take decades to eradicate and the “so-called” experts do not even agree as to exactly how. The legal profession, however, has always been on the vanguard of social change. Thus, what can the IP community do? Allow me to make a few suggestions:
1. The USPTO should collect more inventor statistics related to race and ethnicity.
As famed management consultant Peter Drucker is credited with saying, “if you can’t measure it, you can’t manage it.” Currently, we cannot precisely measure the level of Black innovation (or even invention) as those statistics are not collected or reported by the United States Patent and Trademark Office (USPTO). Yet, the USPTO collects and reports on these types of statistics on a gender and geographic level, which the public and private sector use as a basis for studies and any remedial programs.
2. Members of the IP Bar should strive to volunteer more pro bono hours.
When I was sworn into the VA Bar, one of the ceremony’s speakers was from a Virginia legal aid organization and she said, “even a patent attorney can do an uncontested divorce.” I’ve always wondered why she singled out IP practitioners? Well, 15 years later, I finally know why! IP attorneys are notorious for not volunteering pro bono hours on the same level as other types of practitioners (e.g., criminal and family law practitioners). Yet such volunteering would go a long way towards educating Black entrepreneurs about, and assisting them to secure, IPR on their path to innovation.
3. Members of the IP Bar should seek change within the IPR and innovation ecosystems.
Often the USPTO and other IP-related agencies study the impact of new rules and regulations on special interest groups (e.g., SMEs). These studies should extend to other disadvantaged populations as well. That is, if any part of the IPR or innovation ecosystem puts one particular class of persons at a disadvantage, the IP bar should lead the charge to petition for change. (For example, such activities led the USPTO to establish a database of official insignia of Native American Tribes, which list words and symbols ineligible for trademark registration.)
Such change to the IPR and innovation ecosystem should also include seeking to diversify the IP Bar as well. Overall, less than 4% of the lawyers in America are Black. Given the Black share of science and engineering bachelor’s degrees awarded is 8.6%, it is not surprising that approximately less than 1.5% of IP attorneys are Black. Even seeking to diversify the ranks, and then employing the services, of patent searchers, patent and trademark examiners, IP secretaries, patent draftsmen, IP paralegals and the like would raise the level of awareness within the Black community and contribute to narrowing the innovation gap.
In a 1972 court decision, United States Supreme Court Justice Stewart wrote: “Property does not have rights. People have rights.” Accordingly, Blacks must be diligent in making sure that they are aware of their intellectual property rights, like any other civil right, and seek IP legal counsel to secure and enforce these rights for economic gain, the avoidance of economic exploitation and the creation of wealth in the new millennium and beyond. That will only be achieved with the help of those (of all races and other categories that divide us) who work within the IP community. Until then, in a society where innovation is the key to individual wealth and national economic prosperity and where IP attorneys who represent innovators should be the “next generation civil rights lawyer,” I (and many like me) will have failed to live up to my mother’s dream.
While on the United States and its racial-based innovation gap, I do strongly suspect that the analysis of the problem and proposed solutions are equally applicable to other nations and the similar divides facing their respective majority-minority/wealthy-poor/male-female or any other “advantaged versus disadvantaged” populations.