“Hannon’s answer is to simply adjust the requirements to the pool of possible applicants to include more women, but making such adjustments would also open the pool of applicants to include more men, so there is no guarantee that the stated goal would be achieved.”
“Qualified women are unnecessarily excluded from membership in the patent bar,” wrote Mary T. Hannon in a recent law review article seen by Senators Mazie Hirono (D-HI), Thom Tillis (R-NC) and Chris Coons (D-DE), who promptly sent a letter to United States Patent and Trademark Office (USPTO) Director Andrei Iancu demanding answers. A scandal of epic proportions in 2020 if an agency of the executive branch is actively excluding women from the ranks of patent practitioners. But it’s just not true.
Among other things, Hannon argues in her article that nursing, psychology majors, pharmacy majors, mathematics majors and others should be allowed to become patent practitioners. I explained that her approach to lowering the bar on admission to practice as a patent practitioner is not the answer because both legal and scientific competence is specifically required by the ethics rules promulgated by the Patent Office. As you might imagine, pointing out what should be self-evident and fairly uncontroversial, namely that becoming a patent practitioner requires scientific and technical expertise and skill, created quite the stir.
Restating the Obvious
Some noted that Hannon did not suggest lowering the bar, just that different degrees should qualify for admission to the patent bar, which is an interesting if not disingenuous argument. Allowing a psychology major, nursing major, or even a math major to become a patent practitioner would reduce the scientific background presently expected from patent practitioners. Again, an observation that is hardly capable of challenge, but one that seems to have provoked some as if I hit a hornets’ nest with a baseball bat. In any event, it is true that Hannon does not specifically use the verbiage I did with respect to “lowering the bar,” but that would be the necessary consequence if her recommendations were to be adopted.
For example, if you look at a typical nursing curriculum, after general science courses during the first four semesters, much of the last four semesters is devoted to providing care to patients in various settings. As important a role as nurses play within our healthcare system, does the provision of nursing care qualify one on a scientific or technical level to be able to do the technical writing necessary to describe an invention of an inventor so another of skill in the relevant art will be able to both make and use that invention? And the fact that a nursing degree does not qualify one automatically under Category A does not mean that nurses are precluded from demonstrating technical and scientific competence under one of the four options of Category B.
But what about a mathematics major? A sample mathematics curriculum from the University of Notre Dame shows that the only sciences required are Physics 1 and Physics 2, and then a single science elective. Indeed, mathematics majors take very little science, and while some mathematics majors may be technically and scientifically sophisticated there is no evidence on paper in a transcript that the Patent Office can evaluate to identify technical or scientific sophistication. Moreover, math is not patent eligible, so the entire focus of those with a mathematics degree is in an area specifically excluded from patentability. Further still, many mathematics majors are taught that software is math, and since math cannot be patented no software can, or should, be patented. Of course, there is far more to software than math, but if you really believe there is no difference between software and math you simply do not possess the technical expertise necessary to be a patent practitioner— and I’m happy to debate that point with anyone.
Another flaw in Hannon’s argument is that she argues that “biology” is on the Category A list, but various degrees with virtually similar but not the same title are not, such as “biological sciences”, for example. Perhaps the USPTO should accept degrees with various similar titles, but if the degree is for all intents and purposes identical to biology, as Hannon asserts, then the individual would be able to qualify under one of the options of Category B—it is that simple. Even Hannon doesn’t argue that fact. She writes:
While submission of such evidence for many women may never actually threaten their eligibility, and may merely be a cumbersome exercise in data gathering, there remain many instances in which submission of this additional evidence may be insufficient and preclude eligibility.
In other words, she has no evidence that women have ever been or will be precluded from the patent bar if they have a degree in biological science rather than biology. Still, women should be able to have their degree in biological science count to presumptively admit them to practice because the submission of additional evidence may be cumbersome and become an issue at some point in the future. But how is that only true for women? Why isn’t that also true for men?
Missing the Goalpost
Therein lies the fundamental flaw in Hannon’s article; she couches everything in terms of the patent bar requirements being sexist and discriminatory against women and preventing qualified women from becoming patent practitioners, but they apply equally to everyone. Her answer is to simply adjust the requirements to the pool of possible applicants to include more women but making such adjustments would also open the pool of applicants to include more men, so there is no guarantee that the stated goal of more women in the profession would be achieved.
What if Hannon’s suggestions are adopted and more men elect to avail themselves of the lower technical and scientific requirements to become patent practitioners? Would we then lower the requirements even further still, in hopes of attracting more women to the profession?
The critical question that current patent practitioners should ask themselves is, would your firm hire a patent practitioner with a nursing undergraduate degree? How about an undergraduate degree in psychology? At least one commenter to my previous article thought philosophy majors should similarly qualify to be patent practitioners under Category A. Would your firm hire a patent practitioner who is a philosophy major?
We know the answer with respect to those with a pharmacy degree, because from time to time those with a pharmacy degree do qualify under Category B. Based on my experience advising those members of the patent bar with a pharmacy degree, I can attest to the fact that firms and corporations do not line up to hire those individuals, who struggle to find jobs in the patent prosecution world.
It is not impossible to think that a very small firm might hire a nurse, psychology major or philosophy major who doesn’t otherwise qualify under Category B, but large firms and corporations certainly would not, and everyone in the industry willing to be honest knows this to be true. Large firms and corporations hire those with lofty degrees to attract clients, and they have the pick of who they can hire. That means from the top 50 (or higher) law schools and/or those with impressive and/or advanced science or engineering degrees and/or who have achieved prominence as a scientist or engineer. Even patent boutiques that exist in many cases to service clients in a specific technology sector would be reluctant to hire individuals with these types of educational profiles. And we know beyond any doubt that in the life sciences area, a B.S. and sometimes even an M.S. isn’t enough regardless of firm size. Whether the individual with the B.S. or M.S. in a life sciences field has the technical expertise isn’t even the issue. When the clients a firm seeks are engaging in cutting edge R&D, they often expect, or even demand, practitioners with advanced degrees to work on their matters. So, the firm hires new patent practitioners to satisfy the demands of the market.
Unfortunately, there is a business reality that must be considered. The desire to simply have more women who hold the credential of patent practitioner diverges from the business reality if that means we must allow for nurses, psychology majors and philosophy majors to qualify simply to expand the number of women among the ranks. Will anyone feel good if more women suddenly become patent practitioners, but they are unable to find jobs as a patent professional?
Hannon’s Solution Ignores the Systemic Issues
The real solution is to encourage more young girls to pursue STEM education early in life. Unfortunately, again, this self-evident point led one patent attorney to criticize me for calling elementary school females, “girls”, saying “I’ll be damned” if he would allow me to call his daughter a “girl”. This is a perfect illustration of how virtually impossible it has become to have any thoughtful conversation about any topic of consequence in 2020. When language police invade thought and intentionally obfuscate meaning and intent, what hope do we have to achieve any kind of meaningful solution?
And if the goal is to have more women become patent practitioners, can we do it in a way that doesn’t put the burden on inventors? The whole purpose of this credential is to protect the public; a job that simply wouldn’t take place if those with little or no science and engineering education are allowed to become patent practitioners.
Undeterred, and because I believe the goal of a more diverse bar is worthwhile and achievable without lowering standards, I choose to point out the obvious in hopes of seeking a solution.
Young females (i.e., girls) are too often dissuaded from pursuing STEM early in their academic careers when they are most impressionable. It can be a discouraging word from an elementary school teacher who might even mean well, but at a particularly formative moment says something that is understood to mean that math or science are subjects for boys. It might be an unenlightened family member or friend making an offhand comment about math or science not being good subjects for young girls to spend time studying. It can be many different things, some overt, some more casual and harder to see, but early on is when children are very impressionable, and we have the greatest opportunity to influence them in both positive and negative ways.
The problem when we see fewer women who are inventors, scientists, engineers and patent practitioners is to a great extent an input problem that starts several decades before any particular count is made or quota is missed. In other words, we don’t have an output problem, we have an input problem, and no amount of lowering the bar to allow people who are unqualified and likely won’t find a job will change the fact that not enough is being done to encourage elementary school females to pursue STEM, and then subsequently as they age throughout junior high school and into high school.
The solution isn’t to demand the USPTO make it easier for women to become patent practitioners, the solution is to do the hard work to fix the problem at the source. For example, have the USPTO establish a program reaching out to any elementary school in the country with learning opportunities led by female patent examiners who can mentor young girls and to find women inventors similarly interested in participating. Over time, this could lead to the USPTO heading an inter-agency effort, with women scientists from all over the federal government, and the Office could seek to engage women scientists who work on the county and state levels across the country. Seek corporate partners who can and will participate by giving their female scientists and engineers time to participate. Create a program of outreach and engagement. A rising tide lifts boats. That is how you solve the problem in a long-term sustainable way, but it takes real, hard work; far more than just moving the goal posts at the end to make it easier and doing nothing to build the infrastructure for success. Hannon’s solution would arguably allow the entrenched societal norms that keep women from pursuing STEM degrees—which undoubtedly exist—to remain unchallenged.
Finally, everyone in the patent industry knows that over the past decade the federal courts have continued to require more detailed technical information in patent applications of all sorts. It has been described as a disclosure revolution by some, and it is hard not to notice that patents issued two generations ago were maybe 25% as detailed, and patents issued a generation ago were maybe 50% as detailed. As the world becomes more complex and the Federal Circuit continues to expect more technical disclosure and corporate clients and inventors continue to ask patent practitioners to do more for less, does anyone really think it is a good idea to allow individuals to become patent practitioners without sufficient technical and scientific expertise?
Don’t shoot the messenger because you don’t like the message, but even the Supreme Court has long understood that a patent application is one of the most difficult legal instruments to draft. Topliff v. Topliff, 145 U.S. 156 (1892). Given the legal, ethical and business realities, the USPTO should, if anything, be considering raising the technical and scientific requirements, not lowering the bar. That in coordination with a vision for a long-term solution to encourage elementary school aged girls to pursue STEM is what a sane, rationale, gender neutral policy would be, given all available information.
For those interested, Invent Together is hosting an event on this topic, featuring Senator Hirono and Director Iancu, today at 4:00PM EST.
Image Source: Deposit PHotos