Solutions for Promoting Patent Practitioner Diversity at the USPTO in the Battle Against Systemic Racism

“There is no guarantee increasing diversity in the context of STE alone will translate to increased diversity in the patent bar. This is especially true if the problem is gatekeeping in the legal profession rather than a lack of diverse candidates with suitable STE backgrounds.”

https://depositphotos.com/7784663/stock-photo-time-to-change-concept-clock.htmlEditor’s note: due to a technical glitch, the subheading “New Solutions” and the first paragraph under it were initially omitted from this article. It was updated on April 17, 2021.

A critical battle against systemic racism currently engages the United States. Patent practitioners across the country—from the University of Minnesota Law School (a mere 2.5 miles from the location of the killing of George Floyd) to the U.S. Patent and Trademark Office (USPTO) headquarters in Alexandria, Virginia (another 1,000 miles away)—must cast a critical eye towards our profession to identify systemic barriers in the patent field.

Recognizing the Problems

Diversity in the patent bar is abysmally low, both from a gender and a racial equity standpoint. Recent estimates place the percentage of Black intellectual property lawyers at less than 2%. The proportion of female patent practitioners is estimated from 18–29%, depending on methodology. We can and must do better. Patent practitioner diversity at the USPTO should resemble our communities, or at the very least, undergraduate science, technology and engineering (STE) enrollments.

Some leaders argue encouraging more STE development and involvement will solve this problem—guiding K-12 students into STE fields, encouraging and supporting students from all backgrounds into STE undergraduate degrees, increasing the number of role models and mentors, etc. These are worthy initiatives that will pay dividends. However, speaking from experience in graduate and professional education, there is no guarantee increasing diversity in the context of STE alone will translate to increased diversity in the patent bar. This is especially true if the problem is gatekeeping in the legal profession rather than a lack of diverse candidates with suitable STE backgrounds.

The fact remains the cost of becoming a patent attorney is too high. Pursuing a Juris Doctorate (J.D.) can cost upwards of $150,000 in tuition alone. The three-year time commitment is an opportunity cost which bars candidates who need to support themselves or family members. These often-insurmountable costs are a significant barrier to patent practitioner diversity at the USPTO. This problem compounds itself because family members of lawyers are more likely to become lawyers themselves, thus perpetuating the legal profession’s lack of diversity. All of these costs and barriers to obtaining a J.D., taken together, constrict the pipeline of eligible candidates who may sit for the patent bar. This is a significant barrier to achieving true patent practitioner diversity of the USPTO.

New Solutions

In light of these issues, a forthcoming article in the Vanderbilt Journal of Entertainment & Technology Law argues for increasing patent practitioner diversity in two ways. First, it can be increased by expanding the alternatives to a traditional J.D. program. This will expand the pipeline of students who aspire to become patent practitioners but wish to avoid the burdensome time and financial commitments of a traditional J.D. program. Second, it can be increased by removing systemic barriers these students face. Opportunities for improvement in this area can be found in the interpretation of student visa status required to sit for the USPTO examination, USPTO law school clinic certification program, and USPTO law school patent drafting competition. These suggested reforms should increase diversity—which is desirable in and of itself—and provide economic benefits by increasing innovators’ access to representation by patent practitioners as well as increasing innovators’ access to patent protection through representation by more available patent agents.

These reform proposals are in keeping with comments from other prominent commentators. Dr. Daniel J. Krueger, a patent lawyer and President of National Association of Patent Practitioners (NAPP), advocates in NAPP’s comment to the USPTO for “increased visibility and availability of patent agent career paths that avoid the burdensome time and financial commitments of a traditional Juris Doctorate (J.D.) degree program.” NAPP also suggested making certain educational programs available to non-JD students, arguing the USPTO should “open up the Patent Drafting Competition and the Law School Clinic Certification program to all those persons eligible to pursue a patent agent registration, not just students seeking J.D. degrees.”

A number of organizations and associations, such as IPO, AIPLA, and ChIPs, are also moving this conversation forward. To join the National Association of Patent Practitioners’ efforts, contact NAPP@napp.org via email or @NAPP1996 on social media.

Be an Ally

Please note, I don’t understand every barrier faced by those from a background different from my own. I do, however, understand educational systems, career outcomes, and the path to practice in patent matters before the USPTO. I am obligated to use my privilege, position, and understanding to be an ally at the undergraduate, graduate, and professional levels and to help move the conversation forward on the topic of patent practitioner diversity. Hopefully, my colleagues in the profession will feel the same obligation. It is incumbent upon us to identify and dismantle barriers to build a more open and equitable practice. The proposals above are a step in this process.

For further reading at IPWatchdog.com:

USPTO’s Drew Hirshfeld on Proposed Changes to Requirements for Patent Bar Registration: It ‘Just Makes Sense’

Ensuring Women and Diverse Candidates in the Patent Bar: We Must Address the Root of the Problem

USPTO Responds to Patent Bar Gender Gap Inquiry, Mulls Changes to Registration Process

Lowering the Bar to Diversify the Patent Bar Would Be Misguided and Unethical

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

 

Image Source: Deposit Photos
Image ID:9470092
Copyright:donscarpo 

The Author

Christopher M. Turoski

Christopher M. Turoski is the Director of Patent Law Programs at the University of Minnesota Law School, which offers traditional J.D. and LL.M. degrees specializing in patent law, and an innovative Master of Science of Patent Law non-J.D. degree program.

For more information or to contact Chris, please visit his Profile Page.

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. Read more.

Discuss this

There are currently 70 Comments comments. Join the discussion.

  1. Anon April 15, 2021 2:50 pm

    Virtue signaling and equity as a driver are things themselves that must be stamped out.

    The notion of “be an alley” smacks of Critical Race Theory – which at its core is nothing but the very same Racism that it purports to combat.

    Let’s stop the 1984 tendencies.
    Use terminology like equality rather than equity.
    Use concepts like “merit” rather than codes for ‘token representation.’

    “Moving the conversation forward” should start with recognizing when that conversation has been hijacked by identity politics.

  2. AAA JJ April 15, 2021 3:57 pm

    “NAPP also suggested making certain educational programs available to non-JD students, arguing the USPTO should ‘open up the Patent Drafting Competition and the Law School Clinic Certification program to all those persons eligible to pursue a patent agent registration, not just students seeking J.D. degrees.’”

    This is exactly what the profession doesn’t need. More people who haven’t studied the law and who are not trained to practice law.

  3. Pro Say April 15, 2021 4:38 pm

    Lower bar to practice = lower quality / picture-claims patents.

    Something our country — and our inventors — most assuredly do not need.

  4. Anon April 15, 2021 4:43 pm

    AAA JJ,

    I find your assertion to be most odd. While I do recognize your position on patent agents, this suggestion is NOT opening things up to “more” people, but instead is actually making those already opened up to, to be merely more proficient.

    Your position appears to be one of cutting off your nose to spite your face.

  5. ipguy April 15, 2021 8:37 pm

    @2 “This is exactly what the profession doesn’t need. More people who haven’t studied the law and who are not trained to practice law.”

    You mean like former Patent Examiners who never went to law school but waive into the patent bar after having worked as Examiners for a certain number of years? Lord knows we already have plenty of them.

  6. RTFMPEP April 15, 2021 8:42 pm

    “The notion of “be an alley” smacks of …”

    Poor reading comprehension skills on your part.

    White supremacists use the “merit” argument Not all conservatives are white supremacists but all white supremacists are conservatives.

  7. ipguy April 15, 2021 9:11 pm

    If the ultimate goal is for women and people of color to make large amounts of money and advance socio-economic status, are there better paths for women and people of color to take than patent prosecution or even patent litigation? Getting an engineering/science/technical degree does not guarantee a person will follow a career path in patent law. Can an argument be made that a more lucrative career could be found in the world of business/investment banking/finance/etc. (with or without an engineering/science/technical background)?

  8. MaxDrei April 16, 2021 4:35 am

    Living in Germany, having grown up in England, being a product of both State and private schools, and having a family that includes both lawyers and land workers, I’m sceptical of the emphasis on “barriers” to entry into the patent attorney profession. Rather, it seems to me that patent law firms everywhere, driven by unsentimental business imperatives, have always striven to recruit as their stock of future shareholders nothing more or less than the best raw talent, not being put off by urges to discriminate against any particular sub-set of those applying for the job.

    It’s just that the fact that being born into a family of established professionals confers a huge advantage on that child, years later, when it is seeking to appeal to the partners of a law firm. The firms, I suspect, assess such privileged candidates as exhibiting not only more honed talent but also more aptitude, more potential and, most important, more self-confidence, more eloquence. For them, and perhaps also the firm’s clients, this self-assurance and eloquence outweighs, consciously and sub-consciously, any consideration to be given to candidates who, despite the handicap of poverty, disadvantage and/or under-privilege, have nevertheless admirably fought their way up as far as an interview with a leading law firm.

    The author cites a Paper entitled “In my Father’s Footsteps…”. I should like to know whether patent law firms are less likely, these days, to recruit youngsters with a professional family background. Or are they just as likely as ever? Or are they, more worryingly, more inclined today than ever they were, despite Hollywood myth-making, to favour those coming from a privileged background for a very good reason, namely to secure the financial and business success of the firm in an ever more competitive world?

  9. John April 16, 2021 5:48 am

    @#6 Not all progressives are fascists, but all fascists are progressives. See how that works?

    Merit is not a dog whistle unless you’re an idiot that wants to demand we see the faces in the clouds you see and hear the voices limited in your on head. Merit is quality of being good.

    I’m glad IPwatchdog welcomes many viewpoints, even moronic ones. Unlike the author and the comment or #6, it actually welcomes diversity, including diversity of thought.

    Thar said, this is article and your comments are pure crap/virtue signaling masking progressive approved fascism and racism.

  10. Anon April 16, 2021 8:15 am

    Do you want to talk about poor comprehension (reading or otherwise)…?

    This statement, “White supremacists use the “merit” argument” is a top nomination for the 1984 prize of the year.

  11. Anon April 16, 2021 8:17 am

    To MaxDrei, how much of what you post falls to the adage of “correlation is not cause”…?

  12. George April 16, 2021 8:55 am

    An educator who thinks that the cost of education is too high? Curious.

  13. Stephen Knuth April 16, 2021 9:27 am

    Why doesn’t the patent bar exam include actual claims drafting? Right now the patent bar is the biggest deterrent to practicing and is simply a test takers test that only post docs are passing. Everyone knows if they are being honest that the patent bar is so hard that it is limiting new practitioners, many of which cannot draft claims.

    Raising the pass rate instead of “thinning the herd” and appeasing current practitioners would be best and be more inclusive. Let the PTO put a bit more work into this and actually grade claims also.

    The old exam format was best and would encourage more diversity as well as insure people have basic claims drafting skills.

  14. Night Writer April 16, 2021 9:56 am

    “A critical battle against systemic racism currently engages the United States.”

    12 % of the Congress is made up of black people. Intellectuals now call the people that make statements like the above neo-Marxists that are using gender and race to cease control of the USA and want a system of monitoring everyone like China has and a system of “equity” where they categorize us and then make sure each category has “its share”.

    The evidence is simply that the problem is not systematic racism but that poverty, income disparity, and cultural barriers. And all valid studies show that poor neighborhoods of Hispanic, non-Hispanic white, and black all have very similar problems.

    Wake up and realize that people like the author are neo-Marxists.

  15. Night Writer April 16, 2021 9:58 am

    Here is just one group of intellectuals speaking about neo-Marxists like the author of this article. There are many, many more intellectuals that are speaking out against the positions taken by this article.

    https://www.youtube.com/watch?v=ZuvhrXM3v7U&t=8s

  16. Night Writer April 16, 2021 10:06 am

    @8 Max

    Except reality. You always yap on about stuff and never seem to get to the core issue and reality.

    Statistics just don’t bear out what you are saying. In the USA the top performing group are Asian Americans with on history to help them. Indian Americans make more than any other group. Chinese/Korean Americans score the highest on the SAT with no group to fall back on. Nigerian Americans have a higher average income than white Americans. And so forth and so forth.

    The fact is that there is simply no statistical evidence –that is worth a darn–that supports the things you are saying. In the USA, what the statistics tell us is that hard work pay off.

    There are problem areas that include all races where there is a endemic poverty that seems to breed problems and there are drug wars. But all of this seems to be independent of race and more to do with situational conditions.

  17. TFCFM April 16, 2021 10:16 am

    Article: “We can and must do better.

    This statement presupposes two critical things, neither of which is necessarily true:

    1) That having fewer patent practitioners with the “right” gonads and skin color is a “bad” thing.

    2) That the reason there are fewer practitioners having the “right” gonads and skin color is something that “we” have done.

    To the extent anybody is inhibiting folks from becoming patent practitioners on the basis of their gonads or skin color, I (and, I believe, nearly all patent practitioners, if not absolutely all) agree that such discriminatory practices are indefensible and ought to be entirely eliminated.

    However, as to causation, I would caution critics to consider the possibility that the relatively low regard with which patent practitioners are held and the relatively low compensation levels which patent practitioners earn (certainly, comparted to many other legal specialities) may well be factor which cause career-seekers (even ones having “right” gonads and skin) to forego the expense and difficulty of becoming patent practitioners in favor of more-highly-regarded and -compensated alternatives.

    Willow trees don’t tend to grow near water sources ONLY because forest trees DISCRIMINATE against them. They do so because they tend to thrive there and because other tree species don’t “like” such niches as much as other niches.

  18. Curious April 16, 2021 10:23 am

    I should like to know whether patent law firms are less likely, these days, to recruit youngsters with a professional family background.
    Even 20 years ago, when I was asked to be part of the interviewing process, I was instructed not to ask about marital status. With that in mind, one’s “family background” is rarely a topic of conversation. In fact, if somebody volunteered that “my family has a bunch of lawyers,” I would find that off-putting. I/we are hiring the individual — not the family.

    @#6 Not all progressives are fascists, but all fascists are progressives. See how that works?
    Since the term “fascist” is thrown about quite often these days (oftentimes in a completely contradictory manner), I have had to look it up on occasion to identify a more standard definition. This is from Wikipedia:
    Fascism (/?fæ??z?m/) is a form of far-right, authoritarian ultranationalism characterized by dictatorial power, forcible suppression of opposition and strong regimentation of society and of the economy which came to prominence in early 20th-century Europe. The first fascist movements emerged in Italy during World War I, before spreading to other European countries. Opposed to liberalism, democracy, Marxism, and anarchism, fascism is placed on the far right within the traditional left–right spectrum.
    Under that definition, I can hardly believe the statement that “all fascists are progressives.”

    As far as this article goes, I think Anon is correct in characterizing it as virtue signaling.

    As I have written before, I have (in my three decades as both an engineer and patent attorney) seen no discrimination against women or minorities at the places I have worked. On the contrary, I have seen a concerted effort to recruit, retain, and promote individuals that fall within these classes.

    The problem of under-representation is that there simply isn’t enough candidates. Why is that? It isn’t because the jobs are undesirable and they don’t pay well. To identify the root problem you need to start looking at individuals when they are pre-teens. If you want under-represented classes to having greater representation in the patent field, then get more pre-teens interested in mathematics and science. It is around 5th and 6th grade that kids start getting placed into learning tracks that will ultimately determine how qualified they are to get into certain programs in college. If a kid isn’t in the top-tier mathematics track for his/her particular school system, it is gong to be difficult for he or she to get into a good engineering school. After engineering school comes law school and then there is an opportunity to become a patent attorney. However, it all starts very early on.

    People have been attempting to address this issue for decades. If it was easy to address, it would have already been done so. If someone wants to make a difference, then someone needs to reach the parents of these kids and explain to them the importance of schooling for it is the parents who are likely the greatest influences in the child’s lives at that age.

    Some of the other proposals being bandied about (e.g., reducing the qualifications necessarily to take the patent bar) won’t help things. A great many patent attorneys wash out early because it is a very demanding profession. You need to be both a good attorney while also understanding technology that (by definition) is exceptionally new. Loosening the qualifications will be a disservice to the people who don’t have the intellectual chops to handle the job, be a disservice to those firms hiring these people, and most importantly, be a disservice to the clients.

    To MaxDrei’s point, it is easier for students who have professional parents because they are probably put in good learning situations and have a lot of positive support. As such, seeding these professions with underrepresented classes should have a positive impact in the long run. However, putting people into positions that they cannot handle is not good either.

    From my perspective, if a candidate is qualified as a patent attorney, they can find a job regardless of their race, religion, gender, or whatever. As such, if there is an impetus to get greater representation from the under-represented in this profession, then they need to look somewhere other than the profession for a solution. From where I sit, there needs to be a greater emphasis in a STEM curriculum at an early age for those in the under-represented classes. Clearly, there has been a lot of work being done in that area. However, it can take 15 years between when a kid is put on the right track to when he or she becomes a patent attorney. There is no quick and simple solution.

  19. Night Writer April 16, 2021 10:23 am

    The other aspect about this too which is what Hillary Clinton said is that by age 12 a person’s advantages or disadvantages have happened. That the focus should be on early childhood development and that other types of programs that are driven at the top tend to do nothing more than reward people that don’t need the help who are not disadvantaged.

    So, it is saying, if you look at the number of people from the upper middle class and above then the percentages are all about what you would expect in a non-racist society.

    Anyway…we no longer live in a rational world where facts matter.

    And I agree with @13 that we should make the test harder if you want to raise patent quality and probably exclude patent agents. That would improve quality.

  20. jim April 16, 2021 10:33 am

    “The proportion of female patent practitioners is estimated from 18–29%, depending on methodology.”

    And this is a problem for what reason? What’s the percentage of male elementary school teachers or speech/language pathologists? 29% sounds fairly reasonable.

    “Patent practitioner diversity at the USPTO should resemble our communities”

    Great, then you have to fire a lot of Jews, given that they are 2% of the population. Asians are also over-represented.

    The argument that the field should resemble the general population always sounds good until you realize what it actually entails. Simply go to any STEM PhD program in the USA and you will notice that 85% of the students are ‘people of color’ (Chinese, etc). You’d have to jettison almost all of them to match the population percentage of Asian Americans. Should we stop hiring Jews and Asians as patent attorneys?

    The simple fact is that you are never going to get to some magical balancing that mirrors the population. Sweden is perhaps the most (suicidally) progressive nation on the planet, and yet it has lower rates of female participation in STEM fields than Iran. In fact, people have noticed that autocratic and paternalistic societies have greater levels of female participation in STEM.

    The USA has scholarships for ‘people of color’, and also preferential hiring in the form of affirmative action (which discriminates against whites).

    The only major structural racism I see in my field (software) comes from the dominance of Indians in the IT sector. Indian companies refuse to hire blacks, women, or members of other ethnic groups, preferring instead to hire Telegu speakers from the upper castes. They are starting to make major inroads into the patent space.

  21. Douglas Caraway April 16, 2021 10:52 am

    I am on several advisory committees for engineering departments at a major university and in talking to students they have minimal awareness of intellectual property, let alone the career opportunities in the field. How do we expect students to choose to work in IP if they don’t know that it’s a career option? Awareness of opportunity seems to be a good step for everyone. So how do we get the word out?

  22. PeteMoss April 16, 2021 11:04 am

    There is a lack of diversity in many professions. The military did a diversity study and found out that the reason there was a race disparity in the officer corps was because their were very few racial minorities enrolled in the existing commissioning sources. If you want a more racial/gender diverse pool of professionals, such as attorneys, doctors and accountants, get more children interested and confident in math and science at an earlier age. The two biggest barriers to becoming a professional are math and science, and these are gender and color blind. In particular, math is hard for most people with at least one X-chromosome, and people typically avoid things that are hard to do. Once there is more diversity in the technical fields, if women or men who identify as women or racial minorities with a technical degree still cannot practice patent law, the law schools should be asked to explain the disparity.

  23. MaxDrei April 16, 2021 12:29 pm

    I read several reactions to my thoughts above, at # 8. Night, your comments about hard-working Asian families and privileged Nigerian families prove rather than disprove my point that family background matters. You find that I am equating “privilege” to skin colour” but look again at what I wrote and ask yourself if perhaps you are finding there something that isn’t there at all, but only in your head.

    And Curious, note that I did not say families of lawyers. I was thinking instead of families in which professionals, business people, public servants, and successful self-employed people are prevalent. This is what transfers self-assurance and self-confidence, social skills and social intelligence to youngsters within that family. It’s a privilege to be born into such a family, I would say, and a handicap to be born into a family that lacks such role models.

    So, I’m not yet persuaded that there is anything wrong with what I wrote at # 8 above. Night, as to the stat, they show that in present day USA the chances of rising up in society from the station you were born into, the amount of social mobility, is less today than it was 50 years ago, and lower than is typical of Western Europe.

  24. Steve Lawrenz April 16, 2021 12:45 pm

    @13

    > The old exam format was best and would encourage more diversity as well as insure people have basic claims drafting skills.

    Perhaps this changed after I took the old exam in 1993, but my understanding of how my test was graded is that I would lose points for every aspect of the disclosure that was absent from the claim I wrote. I would not regard someone’s ability to write such a claim as indicative of having even basic claim drafting skills.

  25. George April 16, 2021 2:27 pm

    @RTFMPEP

    LOL! You don’t say!

  26. George April 16, 2021 2:35 pm

    @MaxDrei #8

    Good point, but racism is alive and well in the U.S. Not much has changed in 50 years (and may have gotten even worse, or at least more visible, post Trump)! But bias, racism and sexism (and sexual harassment) are still a big problem in the sciences and probably law as well. I see no quick or easy solution.

    https://www.pbs.org/video/picture-a-scientist-rlnmdy/

  27. George April 16, 2021 2:39 pm

    @George #12

    You should go with George2 or something else! I already have that identifier (unless you had it first). We don’t want to confuse folks!

  28. George April 16, 2021 2:46 pm

    @Night writer #14

    “Wake up and realize that people like the author are neo-Marxists.”

    Who cares what YOU call them?! What does that have to do with anything, or the quality of their ideas! That’s probably racist and bigoted right there – since it’s not relevant to anything (important).

    Did you support the team of ‘Trump/Putin’?! If so, you would clearly be either a fascist or a communist! Take your pick! Does that mean no one should listen to you ever again?! LOL! Forget the name calling and fear mongering! A ‘majority’ of Americans don’t like that and no court would allow that, that’s for sure!

  29. George April 16, 2021 2:51 pm

    @Night Writer #15

    Why not just ‘shut up’ before you dig your hole a lot deeper! Name calling gets you nowhere! Fear mongering is the ‘refuge of scoundrels’. If you have good and valid arguments, you don’t need name calling! And if you ever tried that in a court, you would likely quickly find yourself in contempt of court and maybe hauled out!

  30. George April 16, 2021 2:57 pm

    @Night Writer #16

    “In the USA, what the statistics tell us is that hard work pay off.”

    Yeah . . . take Donald Trump and his ‘hard working’ family for example! Take Kim Kardashian as another! How about Bernie Madoff (rest his ‘soul’???). And if you don’t like those, there is always the (legal) ‘drug pushers’, the Sacklers! LOL!

  31. George April 16, 2021 3:04 pm

    @TFCFM #17

    “This statement presupposes two critical things, neither of which is necessarily true:

    1) That having fewer patent practitioners with the “right” gonads and skin color is a “bad” thing.

    2) That the reason there are fewer practitioners having the “right” gonads and skin color is something that “we” have done.”

    Wow- it seems we may have multiple racists and sexists on this site! Good to know!

    Regarding #2: Already forgot about slavery, eh TFCFM? Lol! I’m pro-reparations!!! Let’s PAY more slave descendants to go to law school! Problem solved!

  32. George April 16, 2021 3:19 pm

    @Night Writer #19

    “Anyway…we no longer live in a rational world where facts matter.”

    You wouldn’t know a ‘fact’ if Dr. Fauci knocked on your door and told you bleach and Hydrochloroquine don’t work, but vaccines and masks do!!! LOL!

  33. George April 16, 2021 3:25 pm

    @PeteMoss

    https://www.pbs.org/video/picture-a-scientist-rlnmdy/

    And how about the difference between the rooms that women athletes get compared to men?

  34. George April 16, 2021 3:34 pm

    @MaxDrei #24

    “Night, as to the stat, they show that in present day USA the chances of rising up in society from the station you were born into, the amount of social mobility, is less today than it was 50 years ago, and lower than is typical of Western Europe.”

    Absolutely correct! And the middle class in America is also rapidly declining! It’s a BIG problem! Only the rich keep getting richer – and that’s NOT many Black or single women families!

  35. TFCFM April 16, 2021 3:36 pm

    TFCFM@#17: “[article presupposes] That the reason there are fewer practitioners having the “right” gonads and skin color is something that “we” have done.

    George@#31: “Regarding #2: Already forgot about slavery, eh TFCFM?”

    ???

    I suppose I should have said more clearly that the “we” to whom I refer is the patent bar (including bar admission folks). Certainly in the last half-century or so, there is nothing that “we” in the patent bar have done that has inhibited women or any racial/ethnic minority groups from becoming practitioners.

    Thus better explained, my point is that there is nothing that “we” in the patent bar have done that has resulted in “fewer practitioners having the “right” gonads and skin color.”

    (And that further explanation doesn’t even touch on all the falsities inherent in ‘women and this or that minority group are discriminated against Because Slavery.’)

  36. RTFMPEP April 16, 2021 3:57 pm

    @9
    Except what I posted is accurate as opposed to your lie. But that’s how conservatives like your angry white supremacist rhetoric.
    Fascism in the US is a rightist characteristic.

  37. RTFMPEP April 16, 2021 4:01 pm

    @10
    More like the Jan. 6th 2021 Capitol Hill Insurrection Award where your kind attacked America.

  38. Anon April 16, 2021 5:33 pm

    RTFMPEP,

    Your activist privilege is showing (and it is not pretty).

  39. RTFMPEP April 16, 2021 7:06 pm

    @39
    Why do you hate America?

  40. Anon April 17, 2021 9:35 am

    RTFMPEP,

    There you go again, with a post absolutely unconnected to reality.

  41. ipguy April 17, 2021 3:28 pm

    @25
    “my understanding of how my test was graded is that I would lose points for every aspect of the disclosure that was absent from the claim I wrote.”

    During the patent bar preparation course I took in the late 20th Century, we were taught the trick was to re-write relevant portions of the Summary in claim format as the Summary is generally nothing more than the patent’s claims re-written in “normal” English.

  42. George April 17, 2021 4:12 pm

    @ipguy #43

    “During the patent bar preparation course I took in the late 20th Century, we were taught the trick was to re-write relevant portions of the Summary in claim format as the Summary is generally nothing more than the patent’s claims re-written in “normal” English.”

    Yup!!! Good tip! Too bad patents can’t be written (and understood) using ‘normal’ English (and just science) anymore, like it used to be with ‘Letters Patents’.

  43. George April 17, 2021 4:17 pm

    @ipguy #7

    “Can an argument be made that a more lucrative career could be found in the world of business/investment banking/finance/etc. (with or without an engineering/science/technical background)?”

    Yup! Except that women in particular (of any color or ethnic background) face additional problems and discrimination in any field of science and technology and many others too.

    https://www.pbs.org/video/picture-a-scientist-rlnmdy/

  44. Anon April 17, 2021 4:24 pm

    ipguy,

    I learned something similar in a non-patent bar preparation setting (a course in patent preparation and prosecution in law school).

    Several of the “lessons learned” in so doing:

    – Segue away from use of “invention” to innovation (incorporating some watch-outs of patent profanity as well as help some of the older practitioners from their age-old writing tendencies).

    – English language versions of claims could be written in ‘more malleable’ terms, with better nuance. It was not merely a ‘rewrite,’ but a ‘rewrite’ without constraint of antiquated single claim-single sentence structure.

    – Such writing also helped with any foreign equivalents and helped ensure to meet other Sovereign’s tendencies for a more ipsis verbis style of examination.

    In that same class though, Steve Lawrenz’s point above about “how my test was graded is that I would lose points for every aspect of the disclosure that was absent from the claim I wrote” was taken very much to heart, and Ladders of Abstraction was taught as perhaps the most critical skill for the writing of claims in a graduated capture of scope manner.

    I could imagine ‘bad habits’ easily being taught – and quite in fact (on the prosecution side), I have had to ‘unteach’ more recent attorneys who have taken bar preparation classes in at least disabusing them that snippets of case law in the MPEP must be taken as Black Letter law. I have even heard from one attorney that he was taught to NOT challenge obviousness rejections based on improper application of the Graham Factors because – as he put it – the MPEP was de-emphasizing reference to those factors in rejections.

    The Practice of Law remains just that: practice.

    ALL areas of scholastic outputs (including attorneys who practice patent law and otherwise) would be FAR better off if academia would actually focus on teaching critical thinking and questioning authority as opposed to UNquestioning servitude to such nonsense as Critical Race Theory and other Dogmas of the entrenched ‘academic class.’

  45. Eileen McDermott April 17, 2021 4:44 pm

    Please note that due to a technical glitch, the subheading “New Solutions” and the first paragraph under it were initially omitted from this article. It was updated on April 17, 2021.

  46. Anon April 17, 2021 4:56 pm

    George,

    You are yet again posting in your stream of conscience style that is simply not tethered to reality.

    like it used to be with ‘Letters Patents’.

    What are even trying to state? That somehow ‘Letters Patents’ is no longer a thing? That at any time, patents were something other than legal documents?

    You seem to want to have things “BE” just because you utter them.

    Not only is this simply not so, you reveal that your grasp of both history and patent law is woefully inadequate.

    I am not picking on you — I am trying to help you. You do yourself NO favors with these posts of yours. Please stop the next time that you feel the urge to say something that is nothing other than your own “this is how it should be,” and try to frame your view in a manner that does not cast doubt immediately on the view that you wish to share.

  47. RTFMPEP April 17, 2021 5:39 pm

    Anon’s repeated accusation that others are untethered from reality is projection on his part. Conservatives have rejected logic and fact in favor of emotions and belief.

  48. Anon April 17, 2021 5:44 pm

    Ms. McDermott,

    Thank you for the additions, but still – WAY too much virtue signaling.

    For example, the phrase, “ These suggested reforms should increase diversity—which is desirable in and of itself” is pure identity politics pablum.

    Diversity as an end in and of itself should NEVER be viewed in isolation as “desirable.” Such a divorce from any possible advantage of diversity (in views of shared creativity from interactions and the like) are insulting “in and of itself.” It should be stressed that any such diversity only creates value when “cultural appropriation” is also encouraged. What you have instead in today’s PC and ISMs is something entirely different: a divisiveness that does NOT aim for interaction, but instead, seeks to champion separateness.

    Setting that aside, I see a two step item that MAY be good in one of the two steps, but is not quite ‘making it’ on the other step.

    There exists already a step outside of the identified restraint of a “ burdensome time and financial commitments of a traditional J.D. program.

    This is called a Patent Agent Path.

    And much as that path has already been discussed in various prior threads, the notion of THAT path cannot entertain any “ends in and of themselves” that entertains a LESS capable client protectioner.

    The bandying about of “systemic barriers” is to me more of the mealy-mouthed PC-ISMs that have no place in a valid discussion, and such ‘trendy’ virtue signaling actually does damage to the credibility of any worthwhile tidbits.

    I would need to see MORE details on any of the provided individual aspects of:

    – “ interpretation of student visa status required to sit for the USPTO examination,

    – USPTO law school clinic certification program, and

    – USPTO law school patent drafting competition

    While each of these may serve as truly worthy augmenting of patent agents, NONE of these – alone and “of themselves” come even close to providing a person vetted to be of a caliber of one to provide protection to clients.

    The student visa status devolves into an article already touched upon – and I readily permit that ONGOING evaluation of technical training would indeed be ‘fair game” for expansion of ALL people (regardless of ISMs) that may provide services.

    I do NOT see the law school clinic certification program – in and of itself – satisfying either of the purported branches. That is NOT to say that such would be without value, but the value of such wodl clearly be in augmenting THOSE already in law school tracks, and cannot – in and of itself – replace the technical aspects of those who may sit for the patent bar.

    Similarly, law school (so clearly available to those IN law school) patent drafting competitions may augment, but cannot – in and of itself – replace the technical aspects of those who may sit for the patent bar.

  49. Anon April 17, 2021 10:45 pm

    RTFMPEP,

    You are not correct, as I am not projecting. It is beyond clear that my position has no hate for America whatsoever, and it is yours that harbors such malice.

  50. MaxDrei April 18, 2021 5:03 am

    Anon, at # 48 you write that examination of competence in patent drafting:

    “…cannot – in and of itself – replace the technical aspects of those who may sit for the patent bar.”

    Can you tell us what you mean by “technical aspects”? What did you have in mind? Are you alluding to competence in the law, in technology, both, or perhaps something else entirely? And how ido these “technical aspects” interlace with the subject of this discussion, diversity?

  51. Anon April 18, 2021 11:39 am

    Drafting a claim is certainly a worthwhile skill, MaxDrei.

    And a single test may show an inkling of that skill.

    But is in rather uncontroversial that such is by no means the only skill either necessary, or sufficient. You seem to want to challenge that.

    Why?

  52. MaxDrei April 18, 2021 2:56 pm

    If you suppose that my opinion is that claim drafting competence is sufficient to qualify for registration as a patent agent you are mistaken, anon. To qualify for registration to practise before the EPO, for example, to prove your competence to represent real clients safely, you must satisfy the examiners in all four tough-to-pass written Papers, namely: Drafting, Amendment, Opposition and the Legal Paper. The first three are each based on a single “hypo”. Assume two hours to assess the materials, then two to write out your answer.

    Despite it being the “cream of the cream” that even attempt the exam, it is rare to pass all four Papers at the first attempt, even when you have the advantage that you are sitting the written examination in your first language.

    Different candidates have different weaknesses. Training supervisors will wonder which Papers any given candidate will fail and need to re-sit. To qualify by examination as a European Patent attorney is a serious achievement.

    Much the same challenge to get on the national Register of Patent Agents/Attorneys in UK, Germany, Netherlands, Australia, New Zealand, Ireland. At least as tough in Japan, I gather, and I suspect just as tough in Korea and China.

    The thread is about diversity. I think the stats will show that there are more female European patent attorneys in chem/bio than in the engineering sectors, perhaps these days amongst new entrants approaching 50%. And to attract clients out of Asia, firms are favouring candidates with the appropriate language competences. Offers of employment go exclusively to the most talented, the most skilled.

  53. Anon April 18, 2021 5:32 pm

    Offers of employment go exclusively to the most talented, the most skilled.

    Sounds then like you agree with me and my ‘merits’ position.

  54. RTFMPEP April 18, 2021 5:58 pm

    Anon,
    Keep telling yourself that and maybe someday you’ll even come to believe it. You’re free to live in your right wing fantasy land but it’s far removed from reality.

  55. Anon April 18, 2021 10:48 pm

    RTFMPEP,

    What – exactly – is “Right Wing Fantasy” about my view – and how is it “hate for America?”

  56. MaxDrei April 19, 2021 4:42 am

    Anon, I don’t know what is your position on merit so I don’t know if I agree with you. I doubt it though.

    I read Sandel’s book “The Tyranny of Merit” recently, and found its thesis convincing. I suspect though that you would not.

  57. Anon April 19, 2021 7:39 am

    MaxDrie,

    Perhaps then your comment of:

    Offers of employment go exclusively to the most talented, the most skilled.

    Was intended to be a statement that such was NOT a good thing.

    If so, you were not clear.

    Rather than guess then, please clarify.

  58. Anon April 19, 2021 8:15 am

    I would view Sandel with a healthy dose of skepticism.

    One (not his most famous, mind you) of my Uncle Ben’s aphorisms was, “It is good to have an open mind, but not so open that your brain falls out.”

    It is always good to understand the author’s frame of reference and belief structure as you explore their writings.

  59. MaxDrei April 19, 2021 9:24 am

    It’s not just Sandel. Even more relevant here, for those who want to get to the root of the issue of “diversity”, is the Kristof book “Tightrope”.

    You and your Uncle Ben need have no fears that my brain is going to fall out, any time soon, thank you. It is also said that anybody who says they have a vision belongs in a mental hospital. How dismissive and flippant is that?

    As to the importance for the general welfare of nurturing talent wherever it can be found, if and when I need surgery on my brain, then of course I want nothing but the best, most experienced, most talented surgeon to do the work, not necessarily somebody with the most impeccable WASP family history. Same goes for the attorney who will draft the patent application on my invention. I daresay we can agree on that.

    Family history is also interesting amongst the current set of top Formula One racing drivers. Not surprisingly, many are sons of Formula One champion drivers. The most notable exception is the GOAT himself, Lewis Hamilton, for whom BLT is an intensely personal issue.

    https://en.wikipedia.org/wiki/Nicholas_Kristof

  60. Anon April 19, 2021 10:20 am

    It is also said that anybody who says they have a vision belongs in a mental hospital. How dismissive and flippant is that?

    The good old legal answer: that depends.

    There is a spectrum of people “having visions,” and there is NO doubt that this “having visions” along that spectrum does NOT exclude the notion that certainly some DO belong in a mental hospital.

    Personally, I know of NO ONE that falls into the mode that you suggest, that ALL people of vision belong in a mental hospital, and quite frankly, that’s the type of thing that you have been known to make up out of whole cloth (your tendency to be ‘provocative’ by throwing crap against a wall and seeing what sticks – which is not provocative at all).

    I am not a racing fan, so your reference does not reach me there.

  61. Anon April 19, 2021 10:23 am

    CNN and New York Times – your Kristof is already damaged by the company he keeps.

    It does appear that your admonition of not worrying about your brain falling out is a false one.

  62. BP April 19, 2021 12:33 pm

    Some argue the current H-1B visa program “limits career opportunities for women, African Americans, and Latinos” and that very few US minorities saw increased wealth from the tech boom. As to history of our legal system (and barriers to entry), “City of Courts: Socializing Justice in Progressive Era Chicago” provides some insights.

  63. MaxDrei April 19, 2021 1:41 pm

    BP, I see that the book you recommend is from 2004. But I guess it is still relevant today.

    Anon, I’m surprised that you assert that an association with NYT or CNN will inevitably be damaging for a person’s reputation or credibility. The man is the recipient of not one but two Pulitzer Prizes. Do they also count against him?

  64. Anon April 19, 2021 2:13 pm

    MaxDrei,

    That you would be surprised is actually not all that surprising. And yes, when it comes to this subject, those two sources ARE inevitably damaging.

    I made no comment about the Pulitzer Prizes as they do not align with my comment.

    The first such prize (1990 and Tiananmen Square) is noteworthy for the contrast that such may bring between a Left Authoritarian state and how the US is heading that way (in substantive part along the path of identity politics and ‘equity’).

    The second such prize (2006 and Darfur) is indeed laudable, as is his many finalists for such a prize.

    That being said, the evolution of the condition in the US has oft been compared to a slowly boiling frog. Given his most recent work – and the likely view of his earlier work, he himself may have been ‘captured’ in a slow boil, and may be viewing an END and not caring enough about the Means to that End.

    Further, it appears quite possible that for him personally, the line between an ACTIVIST and a reporter has been so smudged, that being an activist and sacrificing ‘niceties’ of being a reporter has long been lost.

    This is NOT to say that the work he has done, or the exposure sought on vile behavior (worldwide) is condemnable. It is to say though that here in the US, even VERY noble Ends simply do not enjoy carte blanche “whatever” legal means.

    Perhaps you have heard of Sir Thomas More. Even (or perhaps more fitting – especially) the devil is given his due (process).

  65. BP April 19, 2021 2:46 pm

    MaxDrei, yes still relevant. We do have some good historians that can provide insight. The history of courts, “the bar” (barriers to practice), and immigration/migration are intertwined. One problem with many STEM programs, lack of anthropology, history and psychology (some companies/politicians like it that way).

  66. Anon April 21, 2021 8:40 am

    if and when I need surgery on my brain, then of course I want nothing but the best, most experienced, most talented surgeon to do the work, not necessarily somebody with the most impeccable WASP family history. Same goes for the attorney who will draft the patent application on my invention. I daresay we can agree on that.

    Which (again) brings me right back to my post at 53.

    Yet, MaxDrei would hint that such is not so.

    I have asked already once for clarity MaxDrei – your response has only been to make your takeaway even more unclear.

    Merit or otherwise – it’s a pretty clear choice, and yet, you seem to not want to really make a choice.

  67. Anon April 23, 2021 11:33 am

    I take it then that since MaxDrei is not interested in providing any clarity, that since he likens his own desire (for brain surgery and patent prosecution) to be merits based, his “hints” otherwise are mere virtue-signaling – without any courage of convictions.

  68. George April 29, 2021 12:23 pm

    @RTFMPEP #54

    LOL!!! He’s impossible! Don’t know what law school he went to, but it must have been the equivalent of Trump University and just as ‘prestigious’!

  69. George April 29, 2021 12:33 pm

    @RTFMPEP #36-40, 47, 54

    Yup! All obvious!

  70. Anon April 29, 2021 6:37 pm

    Thanks George, your comments come in at their usual nadir of value.

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