“The expectation of firms to create programs that bring more diverse candidates into the field, rather than merely manipulating data to check boxes or achieve unrealistic quotas, will help address the issue from the ground up.”
As we celebrate Women’s History Month, it is important to point out the role of women in the field of patent law. Women have been members of the patent bar since as early as 1898, when Florence King became the first woman registered to practice before the U.S. Patent Office, as well as the 685th registrant. She became a lawyer first, and then went back to school to obtain a degree in Mechanical and Electrical Engineering so that she could register on the patent bar. As a woman patent practitioner with a mechanical engineering degree, I feel a lot of gratitude to women like Florence King, who paved the way for me. Yet, despite her trailblazing efforts over a century ago, there is still a considerable lack of gender diversity in the patent bar.
This lack of diversity is based, in part, on the patent bar requirement of a hard science background, such as a degree in engineering, chemistry, physics, or biology; however, the science, technology, engineering, and mathematics (STEM) field has historically been dominated by men, who, as of 2017, account for 76% of all STEM jobs, according to the U.S. Department of Commerce. There is also a glaring lack of racial diversity among the patent bar.
Overall, women make up 22% of U.S. Patent and Trademark Office (USPTO)-registered attorneys and agents (see fig. 1). Of those women, 76% are attorneys and 24% are agents. Although USPTO registration data is available as early as 1950, female registrations were virtually nonexistent until the early 1980s, with the first significant jump in registrations among women occurring in 1989 and gradually increasing until 2013 (see fig. 2). Data shows that the period from 2008 to 2009 is the only time in USPTO registration history where male registrations decreased while female registrations increased. That year, 75% of registrants were men, while 25% were women. In 2017, the highest percentage of women were registered with the USPTO than any other year. In that year, 34% of all registrations were female. Given that women account for more than 50% of law school-entering classes, there is still a long way to go toward leveling the field.
Figure 2. Historical racial breakdown of patent practitioner registrations by year, including racially diverse female registrations.
Among racially diverse women, the numbers are significantly worse, hovering around 1.7% of all registrants. In fact, there are more patent attorneys and agents named “Michael” in the United States than there are racially diverse female patent practitioners. From 1950 until 1999, an average of 0.2% of USPTO registrations each year were racially diverse women, with the first being registered in the late 1980s. Since then, those numbers have improved very little, with an average of 2.2% of registrants being racially diverse women since 2000 (Fig. 2).
For patent firms seeking to increase diversity in their practice, existing diversity data is problematic. For starters, less than 15% of registered practitioners are diverse (race, gender, LGBTQ+) in the areas of computer science, electrical engineering, and mechanical engineering. As registered patent practitioners move along their career paths, there is inevitable attrition, as reported in the Vault/MCCA Law Firm Diversity Survey report. Accordingly, it will be difficult for firms practicing in the areas of computer science, electrical engineering, and mechanical engineering to improve their diversity numbers, particularly at the partnership level, given that the diversity numbers are so low before adjusting for attrition.
And, it’s not just about law firm numbers. Diversity of the patent bar is not only important to those practicing in this profession and creating more representation in legal demographics – it is essential for broadening participation in the innovation process by underrepresented groups. Innovation by underrepresented groups, such as women, will start to improve when they can go to patent attorneys who understand them, who look like them, and who can relate to them. Improving the innovation ecosystem to include all groups of people will foster a more robust economy.
The lack of diversity in the field of patent law is no secret, and several approaches have been tried in an effort to drive change, with two of the most popular being internship and mentoring programs. These programs help STEM/law students and new patent agents/attorneys improve their skillsets; however, these approaches do little to move the diversity needle in a meaningful way. If they were truly impactful, we’d have seen more significant results over the many years these programs have existed. Even if internships and mentorships focus strictly on helping diverse groups, the programs still only help the miniscule number of diverse individuals who are already in the field, which does nothing to increase overall diversity in patent law.
The Mansfield Rule® is another well-meaning approach for addressing diversity in the legal profession, specifically when it comes to diversity within leadership roles. To achieve Mansfield Certification®, law firms are required to demonstrate progress in increasing diversity in senior recruitment and leadership decisions by affirmatively considering a minimum of 30% diverse candidates for these roles, including women, attorneys of color, LGBTQ+, and lawyers with disabilities. Today, women account for a mere 20% of all USPTO-registered attorneys and just 5% are racially diverse. Therefore, it becomes statistically impossible for every patent law firm to have diverse candidates make up 30% of their leadership talent pool. The data doesn’t get much better for the general legal profession either, which has less restrictive requirements to practice as compared to patent law. As of 2019, all racial minorities combined make up just 17.48% of practicing attorneys, and only 3.43% of all attorneys include individuals with disabilities or that are openly LGBTQ+. While women account for just over 36% of all attorneys, women of color only account for 9% (Fig. 3).
The Coca-Cola® “Heavy Stick” approach is similar to the Mansfield Rule®; however, it actively punishes firms that do not meet certain diversity requirements. According to a January 2021 article by Bloomberg Law, “Coca-Cola® is forcing its outside counsel to staff at least 30% of new matters with diverse attorneys, with at least half of that billable time going to Black lawyers in particular.” The corporation’s General Counsel, Bradley Gayton, stated he hopes to increase the overall diverse billable hour staffing requirement to 50% within the next two years, calling the initiative “one of the legal industry’s most rigorous outside counsel diversity programs yet” and withholding a nonrefundable 30% of fees from firms that fail to meet diverse staffing metrics.
As with the Mansfield Rule®, this approach poses several logistical issues based on the fact that only 3.45% of attorneys are Black (Fig. 3). Even after adding in all racially diverse attorneys, Coca-Cola® is limiting its legal talent force to less than 18% of the legal field (Fig. 3). Applying this approach to the patent field produces even worse results. For example, 86.5% of all intellectual property attorneys in the United States are white, meaning just 13.5% are racially diverse. Looking at the patent field specifically, merely 1.7%, or 578 of the total 34,000 registered patent attorneys are Black (Fig. 4).
Figure 4. AIPLA 2019 Report of the Economic Survey background of all surveyed intellectual property attorneys5.
The “Heavy Stick” approach is sure to result in some level of quality reduction for client work products, because work is assigned based on physical characteristics instead of relevant legal skills and experience. Coca-Cola®, and others adopting the “Heavy Stick” approach, should expect a downward shift in quality, and perhaps also timeliness, efficiency, and expertise, if they decide to eliminate their existing standards in favor of this new diversity driven approach.
The overriding problem among the diversity approaches discussed above is that none address the root cause of the diversity issue: the numbers. It may be idealistic for an organization to say that it will hire a specific number of diverse candidates or counsel; however, when it comes time to make diverse hires, where will these diverse individuals come from? If, for example, every organization requires that 30% of their work goes to Black patent attorneys and, as indicated above, there is a pool of 578 of them, how much work can those attorneys handle? What happens to the firms whose fees are withheld because these 578 attorneys already have too much work on their plates? How is it statistically viable to meet these standards, and what impact will it have on the health and work/life balance of the 578 attorneys?
A New Approach is Needed
For the reasons above, the Coca-Cola® “Heavy Stick” approach (i.e., an approach that punishes law firms that do not meet certain metrics) may not improve diversity in the legal profession, especially when the standards cannot be met with today’s pool of diverse attorneys. Instead, companies should consider a “Carrot” approach, which rewards firms that innovate when it comes to diversity solutions. With the “Carrot” approach, clients can require firms to create and implement new diversity solutions, and explain how these solutions actually help solve the diversity problem in the legal profession. The expectation of firms to create programs that bring more diverse candidates into the field, rather than merely manipulating data to check boxes or achieve unrealistic quotas, will help address the issue from the ground up. Clients should encourage and reward innovative and disruptive diversity solutions however they see fit. Whether this be awarding the firms with the most disruptive and beneficial solutions with a nominal monetary amount, investing in programs themselves through sponsorships or scholarships, or other applicable incentives, firms will switch their focus from scrambling to find diverse attorneys or recruiting from competing firms to making a lasting impact in the field.
The high standards for quality writing in our field may limit the overall pool of eligible candidates, coupled with the fact that not enough diverse individuals exist in that pool in the first place. To fix the root cause of this problem – the lack of diversity in the legal profession – requires a long-term approach to be measured in years, not months. Several factors contribute to this problem, which, in turn, requires a multi-pronged solution:
- Insufficient number of diverse students entering law school. This aspect requires educating young diverse individuals about legal career opportunities in high school and undergraduate programs; putting programs in place to steer these individuals toward law school (e.g., pre-law classes, scholarships, tutoring for LSAT, summer internships, etc.); and encouraging underrepresented groups to participate by addressing and eliminating historical obstacles (e.g., lack of financial resources, college readiness, institutional stereotypes, lack of focus and self-motivation, lack of assistance and engagement). This aspect has at least a three-year lead time to see results.
- Insufficient number of diverse students entering STEM programs (which is a prerequisite to a career in patent law). This aspect must be tackled at the middle school and high school levels to increase enrollments in undergraduate programs. The above approach can be applied when students are in middle and high school STEM programs to inform them of legal opportunities. This aspect has at least a two-year lead time (assuming high school juniors are the most advanced targets) for changing college admission rates, and at least six years before individuals complete undergraduate degrees and can enter law school. Realistically, it will take seven to nine years before law school graduation demographics change noticeably for the patent field under this solution.
- Insufficient number of mid and upper-level attorneys that are diverse. This aspect requires that firms provide targeted training, mentoring, and work opportunities to diverse attorneys to grow their skills and help them advance within firms. Merely advancing people based on physical characteristics and regardless of skillset will impair quality delivered to clients and will blemish diversity efforts going forward. This aspect has at least a one-year lead time because meaningful training for a narrow skillset takes at least a year to complete. Lead time will be longer for more varied or advanced skillsets.
Using this knowledge, my firm’s Diversity Committee, for example, has created programs that are focused on serving the legal community by helping to increase the number of diverse legal practitioners and enhancing their quality of practice in patent law.
Patent Pathways: While each of our Diversity Programs has the implicit goal of encouraging diversity and inclusion in the patent legal field, Patent Pathways will have the most direct impact on the least represented group (i.e., Black female patent practitioners), with a goal of increasing the number of Black female registered patent practitioners. The program includes an introduction to patent careers, several weeks of patent preparation and prosecution training, and a clear pathway to taking and passing the patent bar. This program will include corporate sponsorships for patent bar preparation courses as well as taking the bar, and potential law school scholarships offered to those who pass the patent bar. Patent Pathways participants will also be matched with patent attorneys for ongoing mentorship opportunities and maintain a network of other Patent Pathway participants to help each other succeed throughout their careers.
Tutoring Program: While internships and mentoring programs help diverse individuals who are already in the field, tutoring programs aimed at middle and high school students in math and science classes focus on encouraging diverse individuals to enter the patent field. By enlightening students, at a young age, to education opportunities in the STEM field, we provide students with the encouragement needed to become interested in a patent law career, and give them the tools they need to pursue such a career. Our proposed program consists of three phases, beginning with STEM tutoring to girls/women who are interested in STEM from middle school through college, and then expanding the program to all categories of diverse students and more schools.
It also contemplates eventually providing free English tutoring, since writing is an important part of a career in patent law.
The overall goal of the program is to increase the percentage of diverse USPTO-registered patent professionals in the patent field so as to better represent the diversity of the U.S. population. This program requires partnering with skilled tutors for complex STEM courses and requires the support of corporate sponsors.
Action Needed by All Firms and Corporations
One of the largest obstacles we face in this battle is the lack of action. While current approaches attempt to address internal diversity counts, rarely are organizations creating external programs directed at fixing the root of the issue. The legal profession first needs to recognize that the problem is not that firms do not want to hire diverse candidates, but that a sufficient number of diverse candidates do not exist in the field in the first place. Using this knowledge, organizations that require law firms to seek practical and attainable solutions that bring more diverse individuals into patent law will be the ones responsible for revolutionizing the field with respect to diversity. In turn, we can create proportionate opportunities for diverse individuals to thrive in the field, such as described in the Mansfield Rule® and Coca-Cola® approaches. The approaches noted above are realistic plans of action to begin to rectify the issue from the ground-up. While we recognize that this will be a long-term effort, we are confident that we can drive the field in the right direction for women and people of all races, genders, orientations, and abilities, beginning now.
1. “Women in STEM: 2017 Update,” U.S. Department of Commerce, Economics and Statistics Administration, Office of the Chief Economist ESA Issue Brief #06-17 (November 2017).
2. “Diversity in Patent Law: A Data Analysis of Diversity in the Patent Practice by Technology Background and Region,” Landslide Magazine (September 2020).
3. “Law Firm Diversity Survey, Overall Law Firm Demographics,” Vault & Minority Corporate Counsel Association (MCCA) Report 4 (March 2020).
4. “Coke GC Tired of ‘Good Intentions,’ Wants Firm Diversity Now,” Bloomberg Law (January 2021).
5. “2019 Report of the Economic Survey,” American intellectual Property Law Association (AIPLA) (September 2019).
6. “Barriers to Academic Success: A Qualitative Study of African American and Latino Male Students,” League.org Innovation Showcase Vol. 11 Num. 6 (June 2016).