Solving the Patent Bar Gender Gap Without Lowering the Bar to Eligibility

“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.

It’s Complicated

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.

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Gene Quinn Gene Quinn is a patent attorney and a leading commentator on patent law and innovation policy. Mr. Quinn has twice been named one of the top 50 most influential people [...see more]

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com.

Join the Discussion

44 comments so far.

jim
January 26, 2021 08:05 pm
“It is also shortsighted to frame this in terms of gender really. These same issues apply to minorities and even more particularly to first generation college students. ”

Riiight, that’s why minorities are nowhere to be found in patent law LLMs across the USA. Just go to UNH Franklin’s website and find me a photo of a student who is not Indian. Similarly for most patent courses in law school, which have a heavy Asian contingent.

Are Asians not minorities?
jim
January 26, 2021 08:02 pm
“wow, @justsomethoughts. I contemplated not approving this comment as sexist but then decided to allow it and leave it to those commenting here to correct. This is grossly archaic thinking, and the real root of the problem.”

Great, you can explain to us why feminist societies like Sweden have relatively low levels of female participation in STEM, while totalitarian states like Iran, Azerbaijan, China, North Korea and the Soviet Union have something approaching gender parity.

I suspect you would rather just use the typical left wing approach and ignore the evidence.
Anon
December 31, 2020 03:21 pm
Anonymous @ 40,

The view that the choice of a woman to have children should somehow be excused from having consequences and even be viewed as a penalty to women is more than little condescending.

Your “age” and “timing” foundations crater your position.

You INSERT sexism as necessary foundation, so it is little wonder that you find sexism in any view that does not cater to the preconception.

Meritocracy simply does not — and should not — take “I have a womb as any type of altering factor.

(further, you actually denigrate those of us who have made the choice to have a family and still advance in a career – see some of the discussions around Justice Amy Coney Barrett)
Barney Molldrem`
December 29, 2020 04:16 pm
RE @anonymous, 12-29

“What would be the problem with simply requiring a technical aptitude
test to measure these scientific concepts that some believe a member
of the patent bar should have? Let anyone take it that is self studied
and if they pass they can take the patent bar.”

— This appears already to be one pathway, namely option C, taking and passing your state’s Engineering Fundamentals examination. Sailing through that would certainly show that you know the engineering jargon and how engineering principles deal with the sort of problems your engineering clients have solved and what they would want to patent. It’s a six-hour ordeal, and no picnic, but then what is not a struggle that’s worthwhile?
Anonymous
December 29, 2020 08:28 am
What would be the problem with simply requiring a technical aptitude test to measure these scientific concepts that some believe a member of the patent bar should have? Let anyone take it that is self studied and if they pass they can take the patent bar. The original essay is couched in a late 1990s/pre-Internet view of education; nowadays, people don’t need to spend money or time on community college classes when alot of knowledge is online, or can be gotten for free though free online courses that people can take in their own time or through on the job experience. Should we deny someone like Steve Jobs, Mark Zuckerberg, or Bill Gates from being able to take the patent bar without completing months or even a year of coursework?

The rejoinder to that is why then require law school or medical school to be licensed? I see the patent bar as fundamentally different than other occupations. The final choice to be a lawyer or doctor is made later in one’s career, during the later stages of undergrad or in the mid 20s, and law does not require any particular coursework; also, unlike choice of undergrad major, it’s not made when someone is 18 or 19 years old when they may not even have any idea what patent even is and when, quite frankly, many people don’t have a firm idea of what they really want to be. For doctors who don’t take the classes in college, they can do a postbac, which is often done right after undergrad at age 22 and is done usually on a full time basis. But for many would be patent lawyers, the choice to be a patent prosecutor often comes much later, during law school or even in practice when a person has been exposed to patent litigation. Many kids in college may not even know what patent law really is.

It’s naive to think that the artificial barrier of requiring 24 credits of community college at that stage – when someone may be in their 30s or late 20s in the midst of a busy law practice and in the early years for many of starting families.- does not disproportionately impact women – particularly at this stage in their career. For many women it is precisely during the prime child bearing years that the original author would impose these 24 hours of community college credits in order for them to further their career. I would love to see the disparity in the number of men v. women who actually do this alternative route. It’s probably much worse than the disparity between undergrad coursework, precisely because of this timing issue.

It is also shortsighted to frame this in terms of gender really. These same issues apply to minorities and even more particularly to first generation college students. Indeed, I would argue that this is even more a concern for both male and female first generation college students. I teach patent law and many, if not most, of my best students are first generation college students who did not major in sciences and did not have the knowledge at age 19 to want to be a patent lawyer and take the required courses. Like women, they too face barriers, but for them, it may be costs and time to complete an artificial requirement of community college courses.

Another reason why many people may not want to go the community college route is because it waters down one’s degree. If one got their undergrad and law degree from prestigious institutions, they simply are not going to want to water down those credentials by going to a community college. That’s elitist but so is requiring the artificial credential of community college courses, which is equally putting the focus on credentials rather than knowledge. Although the expense may be small, it’s still an expense, and more importantly it is an expense of time to jump through the hoops, a hoop, I might add, that disproportionately impacts women given the timing issue.

I could see if the community college credential bore some relationship to the knowledge required to be a patent examiner. But as others mentioned, it doesn’t; you could still practice chemical arts if you have a biotech degree. Most federal judges deciding patent cases and many past and present Federal Circuit judges don’t even have scientific degrees, so why require it of patent prosecutors? Would the original author impose that same requirement on patent litigators, and make patent law an exception in the legal world by being the only area of law that requires someone know at age 19 what exact field they want to specialize in or if they did not know, to have to waste time taking courses at a community college in the prime of their legal career and at the same time they are often starting families?

The original author talks about how inventors would be disserved; I fail to see how that would happen, especially given that the current system does not limit practice to fields of expertise. Moreover, the system has many checks in the system, from the prosecuting lawyer to the patent examiner to the PTAB to the federal judiciary, with many later in the hierarchy not having this expertise at all. In my mind, any smart person, especially lawyers, have the skills necessary to prosecute patents; ask questions of the inventor, know where to go for expert help, etc. How is it different from patent litigation where ideally you want to give your client the same quality level of service? If clients don’t like it they can speak with their feet, if they would rather the lawyer who took 24 hours at a community college versus the lawyer who they interact with who they think asks good questions. Why require it for prosecution but not litigation? Many of the best patent litigators do not have science degrees.

I don’t think anyone is arguing that some random person without scientific knowledge or someone who majored in philosophy alone should be a member of the patent bar. I think the argument is that the routes to PROVING that technical knowledge could be more diversified, such as expanding the majors as well as possibly instituting a test designed to measure such things. People skilled in statistics or who worked in the financial industry for many years may have more knowledge of business method patents than those who took some college classes in chemistry 15 years ago when they were 18, for example, and often in the “partying” stage of their life. Just because someone writes code does not mean that they don’t know computer systems and architecture. Let them prove it- give them a test. An art major could be more skilled in design patents than a chemisty major. At the very least, do a pilot program and see.

Indeed, one could argue that the requirements should even be strengthened – make everyone regardless of major take a technical aptitude test in a chosen field of study. What’s the objection to that?

I fail to see the argument for why that simple reform of a technical aptitude test is objectionable. Or an expansion of the undergrad majors or graduate degrees, for that matter, in subject matters where students learn scientific methods and learn how to ask questions of scientists. Or the PTO do a pilot online program where they do such a course teaching scientific aptitude, perhaps divided by field. The expense would be minimal if completely online and not required to be graded or have labs and the time investment minimal. We are all use to Zoom now; set up an online course and let people satisfy the requirements by taking that and then taking an aptitude test. Or just give them the aptitude test and submit evidence of self-study or experience. I fail to see the reason for the artificial requirement of the cost and time of community college courses, which may be of varying quality.

The original author rightly notes that one of the true problems is having more women learn science at a young age. Yes, that is the goal, but that’s going to take another few decades to achieve, and if we have more women in the patent bar to serve as mentors and role models we can achieve that sooner. That there is one good solution that may help in 30 or 40 years does not mean that there are not simultaneous things we can also do now to not only increase the number of women but to not actively discriminate against anyone who wants to be a patent prosecutor who did not know at age 19 that they wanted to do that.

The original author also notes that there is no discrimination in how alternative ways to take the patent bar are done. Any proof? Any numbers the author can cite to support that? By my reckoning the number of women, minorities and first generation patent prosecutors compared to men speaks for itself that there is a problem that should be addressed and in a Biden administration it likely would be. The original author simply has no proof there is “no discrimination” so they should be modest enough to just admit they don’t know whether there is discrimination or not; unless they analyzed the numbers they just don’t know and should just couch it in their limited anecdotal experience. Men who work primarily in all male work places similarly see no evidence of pregnancy discrimination; it does not mean that it isn’t there.

Again, I don’t think no one is arguing there should not be standards. I would just ask the original author to be open to alternative ways of proving that knowledge and to recognize that the solution posed – these 24 credit hours and the waiting around for 30 years to increase the number of women majoring in science – is itself a solution that makes no practical sense to help the issue in any meaningful way now.
Mechanical Engineer
December 20, 2020 05:26 pm
I’ve now spent the time to read Mary Hannon’s article and re-read Gene’s article and skim most of the comments above. I found Mary’s article very persuasive on several points. Gene’s characterization of Mary’s suggested fix is inflammatory to the extent it suggests “lowering the bar” is at issue here. Mary’s article follows this logic:
1) The USPTO’s degree requirements are internally inconsistent. While “category A” degrees qualify a person for work as a patent agent/attorney, many of those category A degrees would not satisfy the concurrent “category B” requirements. Indeed, different schools have different names for their degrees that arbitrarily would make a person either eligible/ineligible under the USPTO rules.
2) The category B requirements are heavily biased against degrees in biology and the life sciences. This bias also inherently limits the number of women qualified to take the patent bar, given that undergraduate women are enrolled in the biological and life sciences at higher rates than in electrical and mechanical engineering (more likely to satisfy category B).
3) Technical qualifications are only one facet of patent practitioner’s work. Patent attorneys are likely to prosecute applications outside of their technical expertise (now as always?). As a personal observation, I’d much rather hire an inquisitive chemistry or biology major with excellent communication (particularly writing) skills to draft and prosecute a mechanical application. I’ve met too many general engineering or electrical engineering majors who are simply uninterested in technology and therefore less competent as patent attorneys. In the litigation context, some of the best patent trial attorneys do not have a technical degree. Their success comes from their ability to learn and communicate.
Therefore, why wouldn’t we encourage the USPTO to reconsider the what qualifies a person to sit for the patent bar? It might open the doors to a few extra men, but would allow even more women into the profession. Arbitrary degree requirements don’t protect the profession. In fact, they appear to be hurting our diversity. I agree that some amount of demonstrated technical proficiency is an important qualification for patent agents and attorneys. There’s no need we need English or philosophy majors as patent attorneys. And nursing probably doesn’t clear the bar as described by Gene, above. But let’s think about what really matters. Demonstrated depth of study and accomplishment in a science and technology discipline is critical. Patent practitioners spend their days worried about minor technical details related to esoteric topics. More important than specific undergraduate degree is the ability to sit, read, think, write, and argue about these details–which many people would find exceptionally boring. Many say the most rewarding thing about being a patent attorney is because you get to learn new things all the time. I agree. If someone has demonstrated the ability and interest to acquire a technical education through dedication and focused study, then we should welcome them to the profession with open arms as soon as they’ve also demonstrated competence in patent office procedure.
John
December 19, 2020 04:13 am
I think we should allow structural engineering jobs to be filled by those with honorific doctor of philosophy degrees. I think that should happen immediately in dc sf nyc Portland and Seattle and if they don’t do it, it seems they are being very ‘ist. ?
Barney Molldrem`
December 18, 2020 04:48 pm
re
@Eileen27 and Xtian(various)
I am not so sure if the problems and arguments are “essentialist” (predetermined by whether you have a Y chromosome or a pair of X chromosomes) or a frustation of “existentialist” (due to external factors, e.g., older relatives, culturally shaping your view of the world and your role in it). Certainly we have barely scratched the surface of how anything as complex as the DNA in those sex-determining chromosomes actually function once the differentiaition of zygote tissue starts in the womb. It’s a complex world, and there are lots of factors to take into consideration when we want to open up everyone’s opportunity to make the most out of their life. As for essentialism, while we are able to decide to learn and do whatever we like, we don’t know what it is that makes us decide what to like. In recent decaces more and more men are choosing careers in what used to be women’s world, like nursing and elementary school teaching, where that hardly ever happened in my parents’ world. There were no young ladies who were physics majors in my college graduating class (our of seventeen of us), but one in the next year’s class and several in the classes thereafter. There are complex reasons that these preferences change, which may be external factors unrelated to our predetermined built-in essentialism.
Curious
December 18, 2020 03:42 pm
Eileen–@justsomethoughts and Xtian have both touched on the dubious wisdom and practicality of attempting to impose statistical parity on a profession.

Who can possibly be smart–or arrogant–enough to decide, a priori and without supporting evidence, that the gender percentage “should” be 50/50? If so, does this apply to all professions? Then what about teacher, nurse, dental hygienist, cosmetologist, secretary, stay at home parent, etc.?

If not for all professions, then which? And who is qualified to decide? Who can validly presume to make or even promote these choices for OTHER people?

The sensible solution, as many have noted, lies in removing artificial barriers (including social pressure) and in widely presenting options and opportunities. Personal ability to enter a profession and succeed on the basis of interest, effort, and talent is an immeasurably better goal than the blind pursuit of unexamined statistical parity. Give people the power to act on their individual interests and talents and let the statistics fall where they may.
David Lewis
December 18, 2020 02:01 pm
I think that your comment, “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,” suggesting that all mathematicians automatically see software as math and are not capable to adjust their thinking, is a bit off. Really? Are mathematicians incapable of being educated in case law – e.g., in preparation for the patent bar – and are mathematicians so narrow minded? There are some fields that are awarded patents often, but are highly mathematical in nature. Is it really better to have non-mathematicians working on a patent application that is highly mathematical in nature?

Perhaps that is not what you intended to say, but I thought it was worth pointing out.

Also, many patent applications relate at least tangentially to finance or securities trading (or other areas that are usually considered “ineligible” subject matter), and I would think that a good attorney should often be able to find the “technical features,” preferably before filing the application, and get a patent that protects at least some significant part of the invention. Perhaps, people with degrees in finance (or whatever such field is of interest) would be better suited for picking out at least certain types of “technical features,” than someone with an electrical engineering degree, for example. Also, someone with a degree in nursing, for example, is more familiar with how patience are cared for, than anyone else. I would think that at least some of these techniques do in fact qualify as patent eligible techniques in the US, just as much as methods of performing surgery are patent eligible.

Although I certainly do not promote lowering the bar, the equivalence of re-examining what are considered category A degrees to lowering the bar, does not seem to be entirely correct. In some cases the opposite is true, depending on the subject matter of the specific application, by effectively excluding certain degrees, may lead to having people less qualified in the subject matter of that specific application (e.g., nursing care, finance, securities trading, cryptography) working on the application.

So, perhaps the Category A degrees could use some rethinking, irrespective of the issue of the percentage of women that pass the patent bar?
Xtian
December 18, 2020 10:42 am
@Eileen McDermott: I don’t mean to be obtuse, but could you rephrase your explanation comment @27. I don’t understand what is an “essentialist argument” point of view. I see nothing in “justsomethoughts” comments that he believes his daughter’s preferences of likes (her preference for reading and socializing) are predetermined by and are fixed characteristics of a women’s essence. In fact, justsomethoughts admits that his observations of his own children’s preferences are not universal to members of each group (i.e., to boys or to girls).

Could we flip this around as a thought experiment? Is there a profession that is dominated by women because historically men were socially steered away from said profession or their essence predetermined their profession? Should we as a society be “level-setting” these professions too? What about professions dominated by one racial or ethnic group? Contrary to a poster on another thread, I do know male dental hygienists. I also know many male hair stylists (not barbers, but hair stylists) and these men generally are able to charge higher rates than their female counterparts. (An observation to discuss another time.) I know this is off-topic from Gene’s article, but I find the conversation fascinating.
Anon
December 17, 2020 07:08 pm
Pro Say — I would posit that such an intro could be made part of a history course that actually focuses on the history of innovation.

Mind you, that was a minor for my undergrad, but that level of detail is not necessary to generate appreciation and interest.
Pro Say
December 17, 2020 05:20 pm
What a number of comments leads one to suggest is that — no later than during freshman year of college (but ideally even earlier) — that an, “Intro to IP” one-semester course should be required for all.

Something sure to open the eyes of many more folks — regardless of gender, race, social / environmental, etc. — to the possibilities of a career in the world of IP; including patents.

To the benefit of such folks . . . and for our country as well.
__tr__
December 17, 2020 04:46 pm
@Just some thoughts according to this infographic (appears to be from 2015 or 2016):

https://www.uspto.gov/sites/default/files/documents/All%20in%20STEM%20brochure.pdf

35% of the USPTO’s workforce is female
31% of the USPTO’s leadership is female
27% of the USPTO’s STEM workforce is female

Surprisingly, it does not give a number for Examiners specifically, but other sources seem to indicate it is closest to the third percentage (26-28%).
Eileen McDermott
December 17, 2020 02:45 pm
I think we’re saying the same thing now, @justsomethoughts – where I lost you in your original post was “There are, whether people want to admit it or not, differences between boys and girls.” There are differences in genitalia. There are not blanket intrinsic differences in interests based on genitalia, and where I think we run into problems is when parents and teachers and advisors act like there are and – sometimes unwittingly – steer people in one direction or another as a result. That’s all. I don’t have stats on examiners offhand, but something to look into.
Luis Figarella
December 17, 2020 02:39 pm
Glad we’re keeping the commentary at a higher level than the previous one.

Full disclosure, as a male, there is no way that I can see the ‘Zen Garden’ from the same point of view as a female. Yet, I commend Gene for stepping in front of this issue.

As the father of a daughter (who did not study STEM), and the husband of an accountant who works for a railroad, I’ve experienced through them the fact that ‘of a-holes’, there is an infinite supply. As an engineer born and raised in Puerto Rico, it was common during my early career for people to ask me if I was ‘the affirmative action hire’. But you see, I have a thick skin.

I had a BS, an MS and PhD coursework(all in Electrical Engineering), a PE License, and > 5 yrs working as an engineer, when I was asked if something should be patented, and I had no clue of what my boss was speaking about. Since then I became a co-inventor in 8 US Patents, and through the luxury of an apprenticeship with Moe Pollack Reg. 20,270 (RIP, my Patent Attorney in four of those) had the pleasure of having my 1st prosecuted patent issued to a single inventor, a Female, from New Hampshire!

This year I had 22 issued patents, bringing my total in 15 yrs. of practice to > 120 issued/allowed utility patents + 6 design ones. Over 20 of them, started life at very famous firms, yet needed SIGNIFICANT claim re-drafting to get issued. Claim drafting that I learned from Moe, from Bill Loginov and at many PLI seminars where Gene (and John White), and many others provided selfless insight into prosecution.

In short, I can tell you we’ve come a long way, and have many more miles to go. BUT, as a brown Hispanic, let me just add one final plea. When you’re done with whatever USPTO measures are taken to assist in leveling these numbers for women, can you let me have a copy of the document so I can do a global replace with ‘Hispanics/Blacks’, and we can implement them for our communities also?

Feliz Navidad y Próspero 2021,

Luis
Just some thoughts
December 17, 2020 02:07 pm
Eileen – fair point, perhaps my personal anecdote distracted from my point. I understand that all individuals are just that – individuals.

Yes, by all means, we should be encouraging and exposing girls to science and technology as a career option. We should de-stigmatize math as a male profession. Provide scholarships and opportunities to marginalized or underrepresented groups in STEM. I am all for this.

But the goal should not be any specific outcome. The goal should be to make sure women and any other underrepresented group have the opportunity to make an informed decision about entering a STEM field, not to make sure they actually choose a specific way. Often I feel (meaning, my personal experience) that it is not presented as a choice, but rather as a societal failing that women are responsible to fix by joining STEM to do their part. Which, when stated like that, sounds absurd.

We shouldn’t go from telling girls they need to be secretaries or moms or nurses (archaic) to telling them they need to be in STEM or law. We should inform them, involve them, and let them choose. As noted by Jeanette above, women don’t need someone (mainly the patriarchy) telling them what to do, they just need us (men) to stay out of the way. If there is discrimination, eliminate it. If there is harassment, prosecute it. But the patent bar exam is not the cause of the disparity in genders in patent law.

As an aside, do you have information about patent examiners? My interactions with them make it seem that women are very well represented at the Office, as well as other minorities. Is there something that the PTO is doing right that we could learn from?
Eileen McDermott
December 17, 2020 01:46 pm
@xtian – justsomethoughts’ argument is an essentialist one. I happen to agree with Gene’s overall point; the real problem is such essentialism, which inevitably leads to steering girls away from STEM fields. Changing the rules at the PTO just skirts/ slaps a bandaid on the much deeper problems, which I believe justsomethoughts’ comment -perhaps unknowingly – illustrates perfectly.
Barney Molldrem`
December 17, 2020 01:42 pm
I am wondering how many patent practitioners have qualified for registration via the route of pathway C, that is, by preparing for and passing the six-hour Engineering Fundamentals exam? Anyone? All the topics covered in the EF seem to be spot-on relevant to understanding the invention in almost any realm. On the other hand, speaking from my own qualification as a physics major, I can say that all the coursework beyond Classical Mechanics, that is, General Relativity, Special Relativity, Quantum Mechanics I and II, Astrophysics and Celestial Mechanics, and Statistical Mechanics are no more relevant to any invention I have ever worked on than something I would have picked up if I had taken Nursing or Norwegian Literature for those credits. If I might, I suggest the EF should be a requirement on top of the Tech baccalaureate major or the 16 hours of Physics or 20 hours of Chemistry at a junior college, instead of an alternative. It’s certainly not a back door!
ACA
December 17, 2020 01:17 pm
Part of the solution should be better education of advisors, be that guidance counselors in high school, and/or advisors in college, about careers in patent law. The obvious distinction not understood by many outside this field is that you can have a career in patent law without attending law school, as a patent examiner at the USPTO or a patent agent at a law firm, given you meet the degree requirements. For the latter, you’d have to sit for the patent bar, and there are requirements to sit, but you can sit with just a bachelors degree, given that it is one of the accepted majors.

Yet, the general population does. not. know. this. I have to be honest, I did not even learn about the Patent Office until I was a sophomore in college and got an email from the engineering career office that they were recruiting engineers. But if I were majoring in nursing, I would have never received that email. It’s such a niche field, and to understand how to enter the field, better education of advisors and counselors of students is a must, IMO.
Renee C. Quinn
December 17, 2020 01:08 pm
I have a Bachelors of Science in Psychology, and a Masters of Business Administration. And although I am both educated and VERY mechanically inclined, (I can fix just about anything in my home), I can assure you that my psychology degree, in no way, qualifies me for taking the patent bar. And as Gene has pointed out, expanding the # of degrees that qualify will not solve the problem as that opens the door for more men too! There are far more women in STEM now than there was 20 years ago. As more women enter the STEM field, the number of women that qualify for the bar will increase. But to feel the need to “dumb down” the qualifications is actually a smack in the face to all of those women who have qualified for and taken the bar. Essentially Hirono is saying, “we make it too hard for women, because they are not smart enough, so we need to expand it so more can take the test.” I cannot get over how so many in politics think the answer is let’s give more and more rewards to people while requiring far less effort. It is such an insult to those who have worked their tails off to!
xtian
December 17, 2020 12:43 pm
@Ellen – can you elaborate why justsomethoughts comments are sexist? They appear to be personal observations. What makes them archaic thinking?
Leia
December 17, 2020 12:40 pm
I really do not think it’s the minimum standards that keep women out of the practice of patent law. I passed the patent bar and have worked for five years as a patent attorney.
Anonnoyed
December 17, 2020 12:33 pm
Definition of “covfefe”: When you make a mistake, but play it off like you knew what you were doing.
Eileen McDermott
December 17, 2020 11:57 am
@justsomethoughts: What is archaic is extrapolating your particular experience of YOUR son and YOUR daughter to a generalization about all boys and girls. There are just as many boys who are naturally inclined toward reading and dance and girls who are naturally inclined toward science and math as there are girls who enjoy doing the things society has told us girls normally like; if your daughter is naturally inclined to be a mother and sew, then more power to her, by all means; but that means less than nothing about what all or most girls are inclined to like or do.
Charlene
December 17, 2020 11:56 am
This is a great discussion. I am a Canadian lawyer who is nearly completed the Canadian patent agent exams, which are difficult to pass, similar to what I understand to be the system in Europe. In Canada, we must pass four long-answer written papers on the following: 1. Drafting a patent application; 2. Prosecuting a patent application; 3. Validity opinion; 4. Infringement opinion. While we do not have any requirement for a technical degree in Canada, as they do in the United States, the reality is that there are no practicing patent agents (to my knowledge) who do not have a technical degree. Gene’s observations that firms would not hire someone to be a patent agent, without a technical degree, are spot on in Canada too. Ironically, contrary to Ms. Hannon’s opinion, it is the perception in Canada that entering the profession, in the United States, is perhaps too easy (for both genders) due to the nature of the United States’ qualifying exams (!) However, it is also my understanding, from discussions with US colleagues, that the real training (and barrier to entry) occurs not with the exams, but on the job – and you will not find a job in the US if you are not qualified, regardless of whether you’ve passed the exams.

The discussion on how to encourage more females to enter the profession, is an interesting one. When I was growing up in the late 80’s/early 90’s, somewhere along the way my grandmother had convinced me that girls are not good at math or science. I actually was good at those subjects, but rejected them for a period of time. My parents recognized the impact that her comments had on me, and worked to convince me that I am good at those subjects. I also benefitted from school programs, such as having the opportunity to job shadow female medical doctors and scientists, which experiences I believe had a positive influence on my decision to obtain a Chemistry degree (with a focus on physical chemistry, in particular) in University, prior to law school. So, I think that such programs can and do help young females (girls) who already have an aptitude for sciences and could use some extra encouragement to pursue degrees in the sciences. But I also agree that there is an inherent tendency for females to gravitate towards some professions and males to gravitate towards other professions, which explains the gender disparity in female vs. male practitioners. At the end of the day, I don’t believe there is a “problem” with a gender gap in the profession that needs to be “solved,” although I do support the notion of providing some extra mentoring and encouragement for girls to study sciences, to ensure they feel supported in pursuing sciences if that is what they want to do.
Just some thoughts
December 17, 2020 11:40 am
Eileen – genuine questions – what is sexist or archaic about my thinking? My son and daughter are “different” from each other. One is not better than the other. Should I encourage my daughter (or son) to do things they don’t enjoy? Or to not do things they do enjoy because “society” says they shouldn’t because of some form of “ism” or “privilege” that they enjoy? I try to expose them both to all sorts of different things, and see which stick. I’m not going to force either of them into a field they don’t enjoy. If my daughter decides she wants to be a mom, should I discourage that? She has a great mom who loves being a mom and has no desire to work a traditional “job.” If my daughter wants to be a scientist, I will support her in every way I can (she has a close aunt with a PhD in engineering, so my daughter will know better than most girls what the job entails). I’m not going to treat either of my kids different because of their gender, but I will absolutely treat them differently based on their interests, likes, and personalities.

Again, this is not meant as sexist or archaic, so if you can expound where I am going wrong, I will absolutely consider any points you may have for me.
__tr__
December 17, 2020 11:39 am
@justsomethoughts, I encourage you to think about how a parent’s view of their child’s skillset impresses those ideas upon the child. My sister (who is much, much smarter than I, despite having only attained a “paltry” BA in Physics) pointed out that parents are 250% more likely to Google whether their son is “gifted” than whether their daughter is. CITE: https://slate.com/human-interest/2014/01/parents-ask-google-is-my-son-gifted-and-is-my-daughter-overweight.html.

Further, my undergrad engineering school was 80% male. Don’t you think that kind of disparity has a trickle-down effect on the way a parent might think, “my son will ‘most likely be an engineer when he grows up,'” and conversely, how a child may respond to that kind of thinking? I doubt that many of those good at math at an early age actually like it. Still, when parents provide these subliminal nudges about how a child is supposed to feel about a subject, it serves the kind of short-circuited reasoning that leads to exactly the outcomes that Gene insightfully warns about in this article.

It also leads to the thinking that @Jeanette M. Braun describes. I’ve seen it, and I think we all have. People are distrustful of women who say they like math and science, and therefore a higher bar is set for them to prove that they are, in fact, part of the “brain trust” of scientists and engineers. It is more than enough of a problem that some areas of the country push women into the household. Our society really does not need the kind of confirmation bias presented by your comment.
Anon_Dr
December 17, 2020 10:21 am
*to hire folks – I mean
Anon_Dr
December 17, 2020 10:18 am
I disagree somewhat with your take on this Gene, though I agree in spirit: we should not be lowering the bar. Where I disagree is I don’t think opening the patent bar to other majors, like math, constitutes a lowering of the bar. In fact, I think the bar is quite low as it is and that we should raise it.

Here are my thoughts. We cannot assume that someone with a B.S. actually has any scientific or engineering pedigree. For instance, looking at most curricula across the nation, a B.S. in electrical engineering, for example, is really only 2 years of very basic engineering and math courses and 2 more years of general education.

What this gives you, at least in the patent world, is a bunch of people who actually think they are engineers and scientists and who are practicing patent law. They may be good at the law part, but in my view, they are far behind what science and engineering really are today – especially from an industrial point of view.

I don’t mean to generalize, but some patent attorneys like to advertise themselves as “experts” in some technology, engineering, and science domains where all they have really done is obtain a B.S. and a law degree right afterwards. The so called expertise comes most often times from them having worked on a bunch of patent matters related to said domains.

I think clients recognize this shortcoming in the industry, and that is why they prefer firms with technical specialists with PhDs to work on their matters.

So if a B.S. in EE is OK for getting a patent bar, I don’t really see why it would not be OK for a Math major. Maybe nursing and psychology are a stretch, but Math is OK to me. In fact, I would prefer the reasoning ability of a Math major who as taken a real analysis course over a B.S. in EE any day.

In sum, I think we should be requiring a PhD in a science or engineering field to be admitted to the bar. Technology, Science, and Engineering have evolved, and much like tech. companies now want to higher folks with a wider skill set and more technical ability – i.e., the proverbial “a BS is no longer enough” — we should also be raising the bar for admission to the patent bar!

Respectfully,

Someone with a PhD in EE who is quite amazed by the lack of science and engineering understanding of some REGISTERED patent agents and attorneys…

P.S. Oh, an about patent Examiners! The bar to be part of the corps should be higher too: it would save folks a lot of money on bogus actions – but attorneys might not like that!
Jeanette M. Braun
December 17, 2020 10:09 am
I am a second generation female patent practitioner and a first generation attorney. My mom was a solo patent practitioner and owned her own patent firm. I started working for her when I was a young teen. I have seen gender discrimination first hand in the patent industry itself and in the STEM industry.

Having sat for the USPTO Bar Exam, and having passed it, I can say unequivocally that it is not sexist or discriminatory against women. I do agree with Gene that having more women in STEM majors will help narrow the gap. This, however, is only one facet of the problem. Another facet to the problem is the belief existing that any “bar” for admittance into an industry needs to be lowered to allow women into that industry. This belief needs to go the way of the dodo bird. Women need other women to stop promoting the premise that any standard needs to be lowered to allow women into an industry.

Another facet of the problem is gender discrimination, generally, in the STEM technologies. Justice Ruth Bader Ginsburg said it best: ““But I ask no favors for my sex. I surrender not our claim to equality. All I ask of our brethren is, that they will take their feet from off our necks, and permit us to stand upright …”. Women need men in the industry to keep the bar for entry into a STEM position at the same height as it is for men. I have experienced the bar being raised because of my gender. To narrow the gap, women need to be informed that patent prosecution is a career option for them. I have found many female STEM majors do not know this information. Once a woman has decided she wants to take the exam, she needs to be given the same opportunity to take time to study for it as men are given. She should not be encumbered from studying for it by her job superiors giving her more work when they are told she is studying for the exam.

All that women need is to be allowed to stand upright. The USPTO Bar Exam does this, and the issue with the gender gap in patent prosecution has nothing to do with the USPTO Bar itself.
TFCFM
December 17, 2020 09:55 am
One difficulty that has always existed is that a degree, say in chemistry, means different things as awarded by different institutions. Similarly, an “organic chemistry” class means different things among different institutions (and sometimes even within the same one).

It might make sense to rethink (again) how best to define ‘minimum standards’ for applicants to the patent bar. The Congresswoman’s proposal is, I think by anyone’s standard, pretty simplistic and not very thoughtful, but rethinking may (even if it probably won’t) lead to a ‘better’ formulation of the minimum standard.

Like the 101 standard for patent eligibility, I haven’t heard a clear, convincing statement of precisely where the bright line between ‘eligible’ and ‘ineligible’ should be — whether we’re talking about 101 or attempting to join the patent bar.
Eileen McDermott
December 17, 2020 09:38 am
wow, @justsomethoughts. I contemplated not approving this comment as sexist but then decided to allow it and leave it to those commenting here to correct. This is grossly archaic thinking, and the real root of the problem.
Just some thoughts
December 17, 2020 09:11 am
While getting “girls” more interested in STEM early on is a laudable goal, I think that setting a goal of 50/50 representation may be misguided. There are, whether people want to admit it or not, differences between boys and girls. That is not to say one is better than the other, or that certain characteristics are more valuable than others. There are simply differences. And while they aren’t universal to members of each group, there are statistically significant differences. I have a son who loves math and science, also piano and sports. I have a daughter who loves reading, socializing, and dance. She is also good at math, but hates it. Pushing her to get more into STEM would more likely than not cause her to hate it more. Instead, I encourage her in her own interests, not the interests I want her to have. I don’t want to shame her for not going into STEM. OTOH, my son doesn’t need any extra encouragement – he will most likely be an engineer when he grows up. Should I “dis”courage him because he will then be part of the “problem?”

TL;DR, let’s make sure that “encouraging” girls into STEM doesn’t become a blind drive to meet a quota – we should introduce our kids to all sorts of activities and career paths, and encourage them in the paths that THEY want to choose, not the ones WE (or society) want them to choose.
Night Writer
December 17, 2020 07:56 am
If a man wrote this kind of stuff in a journal article, he would be canceled.

Why shouldn’t men that majored in electrical engineering be qualified for nursing positions?

I note that we have lowered the bar at the CAFC and we have seen what has become of it. We have some of the worst opinions in the history of jurisprudence by non-science majors that don’t understand science on the only court in the USA that is for science.
Lost In Norway
December 17, 2020 05:51 am
I would like to see the requirements changed to accept Category A to accept candidates with Masters and PhD degrees that don’t have the corresponding Bachelor’s degree. Of course, they should easily qualify for Category B, but those requirements are cumbersome if your degree is from 10 years prior.

But this change won’t help get more women become practitioners than men.
Lost In Norway
December 17, 2020 05:48 am
I have to agree with Gene that this is an input/output problem. At my firm, about 40% of our practitioners are female. Coincidently, there are a much higher percentage of women in STEM programs with university degrees in Norway.

I work a lot in the field of non-pharmaceutical chemistry and a majority of customers want to see a PhD. Do I use PhD level chemistry to write the applications? Not normally, but the customer wouldn’t be in my office without it. They feel safer that their invention is in the hands of someone with a higher degree. This transaction is going to cost the customer a great deal of money and I can’t blame them for wanting to feel safe even if a bachelor’s degree is enough for their patent prosecution.
MaxDrei
December 17, 2020 05:07 am
Reading my piece above, at #6, my afterthought is that communication skills are the highest priority, for anybody aspiring to succeed as a patent attorney. It is well known that “the female brain” is statistically more likely to have the edge, when it comes to social intelligence, and likely to be elsewhere than the “ultra-male brain” on the Asperger’s/autism spectrum. Food for thought there, I would say.
MaxDrei
December 17, 2020 04:51 am
Thank you for the answer, Gene. I’m not surprised that, also in the USA, the male/female balance is different, as between chem/bio and the engineering side. It all starts with the mix of pre-school instincts and (to some extent) parental conditioning. You can’t change that by tinkering with the entry requirements to be a patent agent.

I find it interesting that, outside the USA, and especially here in Europe, the profession of patent attorney has its own standing, different from attorney at law but not inferior to it. We European patent attorneys have a science or engineering degree but not a law degree. I think that results in a very important difference in self-image. I see myself as having a foot in each of two camps. First camp: the R&D Dept of my client. Second camp: the litigation law world. I think that direct communication between these two worlds is doomed to falter. You need the patent attorney profession in between. The patent attorney has to be trusted by both of these worlds as “one of us”. For that, the patent attorney needs to be at the same high level in BOTH physical science and the law.

As somebody says above: Patent Attorney, the most rewarding profession humankind ever invented.
John White
December 16, 2020 06:59 pm
Good thoughtful honest article. Hopefully the comments will be along the same lines. I welcome all into the patent bar. It is fun and interesting and rewarding with much to recommend.
Gene Quinn
December 16, 2020 06:41 pm
MaxDrei @3…

I agree. Based on my own observations teaching patent bar review, and in conversation with others in the industry and in observing the industry and attending conferences, etc., I’d say that the life sciences field is closing in on 50-50 if it isn’t already there. In certain engineering disciplines (maybe most) there are more males.

I’ve thought the patent bar exam in the U.S. asks silly things from new practitioners if the goal is to ascertain competence in what it is they will likely do early on in their careers, but it is the same exam for everyone male and female.
MaxDrei
December 16, 2020 05:53 pm
As you and the Supreme Court say, Gene:

“a patent application is one of the most difficult legal instruments to draft”

One would think then, that for the safety of the public, the written examination of competence to practise as a patent agent or attorney should begin with an enquiry into the candidate’s competence to draft.

You know, like the qualifying examination in Europe at least since the EPO started, in 1978. To qualify as a European patent attorney one must pass four Papers of which the first is the “Drafting Paper”. Only the fourth is the a “Legal” Paper.

My estimation is that, these days, more males than females qualify in Europe in the engineering space but, in chem/bio, there are these days more females than males.
Pro Say
December 16, 2020 05:25 pm
Another kerfuffle forthcoming in 3 . . . 2 . . .
Anon
December 16, 2020 04:57 pm
Thank you.

Maybe next an article on the obvious dangers of a Cancel Culture hyperventilating on identity politics…