Are Women Under-Represented in IP Litigation?

Lately, some female patent litigators see an under-representation of women in IP litigation, a recent Bloomberg Law article suggested. And, that one of the key reasons is that fewer women than men graduate with undergraduate degrees in technical fields such as electrical engineering. Technical degrees aren’t a prerequisite for IP litigators, but they can, in fact, lay the groundwork for an interest in patent work.

Melanie Mayer with Fenwick & West, recently sat down with IPWatchdog to discuss this topic. She focuses her practice on IP litigation where she prepares and prosecutes patent applications, analyzes patent issues for various due diligence matters, advises on freedom to operate issues, and provides non-infringement and validity opinions, including opinions for Paragraph IV certifications. Throughout her career, she has represented clients in litigations involving a range of technological fields, particularly in biotechnology, including polymers, polypeptide variants, nucleotide analogs and chemical compounds.

According to Mayer, there appears to be fewer women IP litigators because there are fewer women in the underlying technical arena. However, at least for biotech, she doesn’t think that is true. Mayer explained that her graduate school class consisted of mostly women. That said, if you look at positions of leadership in both biotech, and certainly in the legal sector, you don’t see many women at the top.

Mayer agrees that female patent litigators are under-represented in IP litigation. In fact, women now make up about half of all law students at ABA-accredited schools, but only about 34 percent of attorneys at law firms generally. In addition, the percentage of women partners at law firms is only around 22 percent with only about 18 percent being equity partners. And, studies that have focused on IP practices have found even fewer women attorneys. For example, Law360’s 2016 Glass Ceiling Report found that women make up only about 25 percent of the attorneys at IP boutiques surveyed.

“Attorneys with a technical degree have already chosen to devote years to learning that technology, presumably because it interests them. Technology is likewise a major focus of patent litigation,” she explained. “And while a technical degree is not required to be a successful patent litigator, it provides advantages such as being able to come up to speed on the patented technology quickly and to interact at a sophisticated level with expert witnesses. These advantages often translate into opportunities on a litigation team.  For example, an associate with a relevant technical degree may be the best person on the team to effectively depose and/or cross-examine a technical witness.”

So, why are there more men in this field?

Even despite efforts to improved diversity at some law firms, a gender gap is prevalent in IP litigation, while some other practice areas, like family and corporate law, have improved. Many factors contribute to the under-representation of women in IP litigation, and patent litigation per Mayer.

First of all, there are just inherently fewer women than men with degrees in fields such as electrical engineering and computer science, who may see themselves as well-positioned for a career in patent litigation. In addition, the even more pronounced under-representation of women in IP litigation (as compared to other legal practices) accentuates the hurdles women attorneys already face as compared to their male counterparts.

“For example, when assessing career paths, there are very few female IP litigators to look to as a role model or a mentor,” she said. “If a female litigator decides to have children, she must navigate how to transition on and off cases and hope the opportunities she has earned are still available to her when she returns from maternity leave. This can be particularly challenging where she has no senior female attorneys to look to for advice. There is also unconscious bias on many levels—male partners, who own most of the client relationships, may disproportionately provide opportunities to their fellow male colleagues.”

So, how exactly can the representation of women in IP litigation be increased? Mayer says that encouraging women’s interest in technical fields, including by pursuing degrees in these areas, is a good start. “But, we also need to work even harder at programs that can advance the retention and professional development of women attorneys across the board, such as meaningful mentorship programs, programs to assist women as they prepare to transition to or from maternity leave, and flexible work schedule programs.”

Office-wide implicit bias training can be beneficial. And, in-house counsel can also help increase the representation of women in IP litigation by requesting a diverse legal team with women in speaking and/or leadership positions, as opposed to non-speaking support roles.

In the future, Mayer expects the number of women in IP litigation to rise, but very slowly—too slowly. She added, “I am encouraged by the increasing conversation around this issue, but we must turn our words into action, including by implementing the types of programs and initiatives discussed above.”

These days fortunately, some firms are taking steps to cultivate diversity. For instance, according to Bloomberg Law, 43 percent of 21 attorneys elevated to principal at Fish & Richardson P.C. were women, according to the IP law firm when it announced promotions in January. Additionally, the gender ratio among shareholders and attorneys Venjuris, a boutique IP law firm is nearly 50-50 – which is trickling upwards as opposed to down.