Senators Tell The USPTO To Remove The Arbitrary Obstacles Preventing Inventors (Especially Women Inventors) From Getting Patents

from the patent-barred dept

There are plenty of issues with the patent system as we know it today, but one big one is with the system we use to award them. It's a problem because the more important we think patents are, the more important it is to ensure that the mechanism we use to grant them is capable of recognizing all the invention patent law is intended to protect. Unfortunately, however, right now the patent-review system is architected in a way that makes it miss all too many patent-worthy inventions – including, especially, those inventions invented by women.

The lack of diversity among patent recipients has now caught the attention of a few Senators, who in December wrote to USPTO Director Iancu to express their concern. There may be several reasons for why women inventors are, by and large, not being granted patents, but one conspicuous one that the Senators focused on in their letter is the commensurate lack of women allowed to do the specialized work of filing for patents:

In today’s increasingly competitive global economy, we must leverage the creativity and talents of all Americans—including women, minorities, and people from low-income and other disadvantaged communities—to maintain the United States’ place as the world’s leading innovator. The patent system has long played a critical role in fostering American innovation. As you well know, the USPTO faces a significant gender gap among named inventors. According to a 2020 USPTO report, only 12.8% of named patent inventors are women. The USPTO has undertaken laudable efforts in recent years to recognize and start addressing this gender gap. These efforts are good first steps.

However, we fear that the USPTO’s efforts will be undercut by an apparent gender gap among patent practitioners. While recent data on the demographic make-up of the patent bar is not publicly available, studies from 2011 and 2014 suggest women made up as little as 18% of patent agents and patent attorneys with little growth over time. Unless there has been a significant increase in the number of women admitted to the patent bar in the ensuing years, female membership lags far behind the share of women earning degrees in either science, technology, engineering, or math (“STEM”) fields (~36%) or the law (~50%).

Quoting a letter submitted by Eric Goldman and Jess Miers (disclosure: I signed it), the Senators' letter further explained why the paucity of women in the patent bar may resultingly be limiting the number of women patent recipients:

[A]ccess to women patent prosecutors can increase women’s patenting activity in several ways. Women patent prosecutors can bring extra substantive expertise on goods and services catering to women customers. This expertise can help inventors recognize patentable inventions and better describe them in patent applications. Women patent prosecutors use their unique social networks to cultivate and support women inventors, and they make it easier for women inventors to “see” themselves in the patent system. Also, women patent prosecutors may develop more effective client relationships with women inventors than would develop with male patent prosecutors. That, in turn, can help women inventors feel comfortable seeking patent prosecution assistance and produce the evidence necessary to succeed with their patent applications.

In other words, if you want to patent more inventions, and to make sure women's inventions are among them, you are going to need more women able to help inventors (including those women inventors) obtain their patents. And right now they are being kept out the profession at arbitrarily high rates and for, as the letter also explained, equally arbitrary, if not outright absurd, reasons.

For those confused by some of the vernacular being used here, the "patent bar" is a fancy way of describing the legal professionals allowed to help inventors try to obtain patent grants from the USPTO. The fancy name for this activity is "patent prosecution" and those who do it are "patent prosecutors." Patent prosecutors don't necessarily have to be lawyers able to practice in any other jurisdiction, and most lawyers are not permitted to do the specialized work of patent prosecution. Instead, to be allowed to prosecute patents you need to take, and pass, a separate exam to be able to join the patent bar. It is that exam that is at the heart of the problem.

The problem, however, isn't necessarily with the exam itself. The real issue is that only certain people are eligible to sit for it, and these limitations on exam eligibility are unduly limiting the patent bar by pointlessly excluding otherwise qualified people, including, especially, women:

The USPTO sets the requirements for patent practitioners and, as such, serves as a gatekeeper to the patent bar. To ensure a high level of patent quality, it requires that all candidates pass a six-hour, 100-question exam in order to practice before the USPTO. However, this exam is not open to all. It is reserved for those who possess certain “scientific” and “technical” qualifications. Currently, the USPTO allows college graduates with degrees in only thirty-two specific majors to automatically qualify to sit for the exam (so-called “Category A”). This list includes a wide array of majors in engineering and the physical sciences—degrees that disproportionately go to men. However, it excludes several other majors, such as mathematics, that are highly relevant to modern-day innovation and are earned by women at a rate much closer to their share of overall undergraduate degrees. The list also excludes students who major in industrial and fashion design—fields highly relevant to design patents and for which women make up a majority of students.

True, sometimes those who are not automatically allowed to sit for the exam still can establish their eligibility in other ways, but these rules are even more Byzantine, and the result is still the same: the doors to the profession end up pointlessly closed to people capable of passing the exam and doing the work of patent prosecution. And this limitation on patent prosecutors thus has an echo effect on patent diversity, because it means that only a small subset of patentable inventions are ever likely to be successfully prosecuted.

These exam-eligibility rules therefore need to be reconsidered, the Senators told the USPTO. And to make sure the USPTO takes the matter seriously, the Senators also required it to provide answers to additional questions on the matter, due back to them by January 15.

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Filed Under: diversity, inventors, patent bar, sexism, upsto


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  • identicon
    Lacey McLovelace, 30 Dec 2020 @ 8:39pm

    Won't somebody PLEASE think of the software "patents"

    "However, it excludes several other majors, such as mathematics, that are highly relevant to modern-day innovation and are earned by women at a rate much closer to their share of overall undergraduate degrees."

    If we allow in people with a mathematics background, how will we be able to get "patents" on mathematics, sorry, software

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Dec 2020 @ 9:40pm

      Re: Won't somebody PLEASE think of the software "patents"

      Software is not math.

      reply to this | link to this | view in chronology ]

      • icon
        James Burkhardt (profile), 31 Dec 2020 @ 2:53am

        Re: Re: Won't somebody PLEASE think of the software "patents"

        Software is not math.

        Software is precisely math. All a computer can do is math. All it can do is take inputs, process those inputs through a set formula, and produce an output. if you have all the same inputs you will always get the same result(s).

        reply to this | link to this | view in chronology ]

      • identicon
        Damien, 31 Dec 2020 @ 8:46am

        Re: Re: Won't somebody PLEASE think of the software "patents"

        Software is not math.

        EVERYTHING about software is math. The only reason you can use a computer and believe otherwise is because machine, assembly, and high level programmers and software designers have done such an excellent job of building systems over the years to manipulate electricity in-silico that you don't realize it.

        reply to this | link to this | view in chronology ]

  • icon
    Ehud Gavron (profile), 30 Dec 2020 @ 10:07pm

    Sexism

    I'm confused. Shouldn't "lawyers" (and Cathy is one) be able to represent patent applicants regardless of whether they are male or female? Why should we [society?] push to have FEMALE lawyers to represent FEMALE applicants -- shouldn't that just be done by ALL lawyers?

    It seems to me, pardon my confusion, that
    a. Anyone should be equally able to become a patent lawyer regardless of sex. Stop me if this is confusing.
    b. Anyone who IS a patent lawyer should be able to represent a client regardless of his/her sex. Stop me if this is confusing also.

    I don't think we "need more female lawyers". I think we need to ensure that egalitarian access to the law is there... and egalitarian access to practice law is there.

    Sorry if I'm 100 years behind the times. I want to figure out what the problem is -- and fix it -- so everyone has equal rights, not make it about "some sexes bad, some sexes good."

    E

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 Dec 2020 @ 12:23am

      Re: Mansplaining Sexism

      Did you ever READ a patent? No.

      I've picked a simple one from a simpler age for you, with only a dozen claims https://patents.google.com/patent/US3049588

      P.S. A competent "lawyer" (of whatever sex) is starting for the Patent Bar with at least a linguistic disadvantage. The example above took three years before being granted by the USPTO, one infringement was settled for $3.3 million in today's monies.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 31 Dec 2020 @ 2:31am

        Re: Re: Mansplaining Sexism

        I like how you didn't answer his question and insulted him in the process.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 31 Dec 2020 @ 5:32pm

          Re: Re: Re: Mansplaining Sexism

          Sorry, i was too transparent.
          Shouldn't "lawyers" be able to represent patent applicants regardless of whether they are male or female? is not a question, but a red herring.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 31 Dec 2020 @ 11:18pm

            Re: Re: Re: Re: Mansplaining Sexism

            Did it ever occur to you his question could've been sincere rather than something for you to impose your assumption of what you think he meant?

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 2 Jan 2021 @ 3:26pm

              Re: Re: Re: Re: Re: Mansplaining Sexism

              Sincere? Of course, I saw no sarcasm in misplaced questioning of the survival issues only others see as important. We all are conditioned and blinded by structural prejudices.

              reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 31 Dec 2020 @ 3:29am

      You would think your ideal translates well into reality, but it doesn’t. The contributions of women — and the women themselves, natch — face routine dismissal or derision in all walks of life. (“Who did this for you, sweetie?” says a man who thinks the work of a woman looks “too good” for her to have done herself.) Areas of society stuck in that mindset need shifts in that thinking to get away from it. If that shift has to come with a bit of a push by our leaders, so be it.

      reply to this | link to this | view in chronology ]

    • identicon
      Pecos, 31 Dec 2020 @ 5:29am

      Re: Sexism

      Sexism works both ways.

      The out of nowhere assertion that there is "lack of diversity among patent recipients" betrays the author's primary agenda, which has nothing to do with patents.

      There are huge, well known problems with the US Patent system-- a politically correct perception of gender imbalance is not even a minor problem.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 31 Dec 2020 @ 10:30am

        Re: Re: Sexism

        I agree.

        including, especially, those inventions invented by women

        The article starts out saying that women are disadvantaged in being awarded patents and then backs that up by... talking about a disparity in patent reviewers? If you want to claim that women are disadvantaged in being awarded patents, show us the percentage of patent applications submitted by women and then the percentage awarded. I doubt there is any real disparity there.

        Women may submit fewer applications but that's not the fault of the patent system or any kind of systemic inequality in how the patent office hires or operates. It's due to fewer women submitting applications.

        And if you want to see more women get involved in STEM fields then encourage them from a young age. People generally go into fields they're interested in. If there are fewer women than men in STEM fields it's due to fewer women being interested in STEM. Stop blaming things like the patent office when that's not at all at fault for this.

        reply to this | link to this | view in chronology ]

        • icon
          Stephen T. Stone (profile), 31 Dec 2020 @ 10:47am

          If there are fewer women than men in STEM fields it's due to fewer women being interested in STEM.

          And why, pray tell, do you think that happens? Because I’m pretty sure it doesn’t come down only to gender/biological sex like women are nigh-incapable of being interested in STEM from birth and men are naturally inclined from birth to enter those fields.

          Women are pushed out of/kept out of STEM fields by a variety of societal factors (including flat-out misogyny). Those fields become dominated by men instead of equally (or near-equally) populated by men and women. Men file more patents, and likely have a higher rate of approval for those patents, than women. And I would bet that the majority of people who approve patents are men. Women in STEM, then, face a distinct disadvantage: They’re working in fields where other women are, relatively speaking, few and far between.

          The obvious solution is to start promoting STEM fields to young girls/women. But accomplishing that must start with a shift in the mindset that STEM fields/jobs are “just for men” or that “men are better at STEM than women”. And that includes ridding one’s self of the misogynistic notion that women, by virtue only of their gender/biological sex, can’t (or don’t) have any interest in STEM.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 31 Dec 2020 @ 10:50am

            Re:

            I'm not arguing against any of what you said. I'm only arguing that it's not the fault of the USPTO. The disparity seen at the USPTO (in their employment, not the rate of patent grants) is a symptom, an outcome, not a cause. The cause is much much earlier in the lives of women.

            reply to this | link to this | view in chronology ]

            • icon
              Stephen T. Stone (profile), 31 Dec 2020 @ 2:43pm

              it's not the fault of the USPTO

              Technically, that’s correct — all the social issues surrounding women in STEM don’t come from the USPTO. All the same: If a disparity exists between genders for the percentage of patent submission approvals, and it exists because the USPTO is in any way hesitant to approve patents submitted by women only because they were submitted by women, the blame for that sexist bullshit falls squarely on the USPTO.

              reply to this | link to this | view in chronology ]

              • identicon
                OGquaker, 2 Jan 2021 @ 4:18pm

                Re: Women speak, Men then paraphrase

                only because they were submitted by women Women will Patent things that that modern men see no value in, THAT is the currant dynamic. Our Keynesian money system (G-National-P or capital-izm) sees value only in that which has been monetized, the Chicago School (Free trade or G- Domestic -P) measures only products or services that cross borders. Women preform half of the world's food production, most of the medical care and almost exclusively raise the children without pay. Since Father Serra ripped families apart with strict "zoning", women manage households when men are forced away to produce for TheMan. Many countries see Men's contribution as useless, thus men have no access to 3ed world "micro-loans". Is there a balance when prejudice go both ways? Only the victims will protest.

                reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 31 Dec 2020 @ 10:52am

          Re: Re: Re: Sexism

          I dug up some info that directly contradicts the initial claim of this article. Approximately 17% of new patent applications have at least one female inventor listed. Approximately 21% of applications granted as new patents have at least one female inventor listed. So women are actually granted patents at at least the same rate as men if not higher.

          Sources:
          USPTO: https://www.uspto.gov/ip-policy/economic-research/publications/reports/progress-potential#:~:text=Th e%20%E2%80%9CWomen%20Inventor%20Rate%E2%80%9D%20(,2016%20to%2017.3%25%20by%202019.
          WIPO: https://www.wipo.int/women-and-ip/en/news/2019/news_0002.html

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 31 Dec 2020 @ 5:12pm

            Re: Re: Re: Re: Sexism

            If 21% goes to women and that's at least the same rate if not higher than men, what happened to the remaining 58%?

            reply to this | link to this | view in chronology ]

          • icon
            Ehud Gavron (profile), 31 Dec 2020 @ 8:47pm

            Statistics

            Statistics are only meaningful to people interested in real data.

            The person who said "mansplaining" misrepresents the term to mean "any explanation uttered by a male" (and I'm sure this post would qualify as well.)

            Mansplaining is one thing. Talking down to someone is another. Often the former is conflated with the latter because "a man did it." If the same sentence was uttered by a MOTSS if that's not "mansplaining" or "womansplaining" then it's not.

            My original questions:

            1. Why can not ANY lawyer equally represent men and women???
            2. Why can not ANY person become a lawyer???

            I don't see these as sexist. I think the question is fair when asked by a man or a woman (hence not mansplaining).

            The stats posted above seem to bear out that women DO get to have a large number of patent submissions approved. I don't have ABA stats to see if there are more women lawyers, but quantity doesn't reflect a lack of diversity. For example, there are more ITALIAN F1 drivers than there are Americans (0). That doesn't mean F1 is anti-America. Sure, this is an EXAMPLE but you can get the point... a lack of "diversity" in F1 drivers doesn't mean Americans are being discriminated against. Similarly a lessor amount of female IP lawyers is a datum, but it doesn't mean discrimination.

            It's disgusting that nowadays any opinion uttered by a male is called "mansplaining." It's not. It's when that same opinion -- when uttered by a woman -- would be OK -- that it should be a consideration. Then we can get on to "why is it OK for a woman to say this but a man can't" but that's another topic.

            I'll end as I started the previous post.

            • What prevents female patent authors to get proper representation?
            • What prevents female patent attorneys to be able to provide this?

            I'm no mansplainer, manspreader, or any stupid PC word that seeks to discriminate against me because I'm male. I treat everyone as equally as I can, and no, this is not about me, but it's tiresome to hear these terms being bandied about to dismiss discussions without actually discussing them.

            Happy New Year.

            Ehud

            reply to this | link to this | view in chronology ]

            • icon
              Stephen T. Stone (profile), 1 Jan 2021 @ 2:46pm

              FYI: Mansplaining was coined soon after publication of the essay “Men Explain Things to Me: Facts Didn't Get in Their Way” by Rebecca Solnit (although not by Solnit herself, who dislikes the term). In the essay, she recounts a story where she’s talking with a man about some of the books she’d written; when she mentions the subject of one of her books, the man interrupts her to ask if she’d even heard about an important book on the subject…which the man likely never considered was the book she had written. That kind of act — a man talking down to a woman in a way that assumes he knows more about a given subject than she does because she’s a woman, regardless of her actual level of knowledge — is the perfect example of mansplaining.

              The best way to summarize the phenomenon these days is one word: “actually”. Show me a man who says that — or the two-word variant “well, actually” — to a woman before he launches into an (often verbose and always condescending) explanation of something she was talking about, and I’ll tell you that he’s a mansplainer.

              reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 31 Dec 2020 @ 10:56am

        Re: Re: Sexism

        Sexism works for the enfranchised gender, against the disenfranchised gender. Gender imbalance is a core problem everywhere.

        That said, something i can't articulate feels weird in this particular explanation somewhere.

        But the "author's agenda" is... explaining a thing which Senators and a bunch of other interested and knowledgeable parties have called to the attention of the USPTO. That she agrees with the statement of the problem is not some problem itself.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 1 Jan 2021 @ 8:56am

          Re: Re: Re: Sexism

          ...likely underlying 'agenda' is the standard port side Identity-Politics; a political view and action mechanism that emphasizes group identity over actual individual identity in government & society.
          (term originated in 1977 from a Boston socialist women's political action group)

          Nobody in the general audience here ever heard of this Patent Bar "issue" before, and it ain't in the top 25,000 problems facing the American public.

          One woman (Ms Hannon, Patent Agent) originated this alleged important "issue".
          It got some slight traction in feminist circles and the well-established Identity-Politics political infrastructure. A couple of Senate staffers also picked up on it and convinces three obscure Senators to sign off on a contrived letter to the Patent Office Director.
          It all meshes nicely with the much larger Identity-Politics mode of political mindset and political manipulation.

          What is the "proper" percent of Patents granted to women (or Latinos, Eskimos, Hindus, short people, old people, red haired people, etc) ??
          The basic premise of this "patent bar gender gap" is irrational and absurd.

          reply to this | link to this | view in chronology ]

          • icon
            Stephen T. Stone (profile), 1 Jan 2021 @ 3:01pm

            a political view and action mechanism that emphasizes group identity over actual individual identity in government & society

            When groups that have been historically marginalized in the U.S. use politics as a means to better the lives of those groups (e.g., queer people using politics to further the LGBTQ civil rights movement), it’s “identity politics”. But when historically powerful groups do the same damn thing for themselves, it’s simply called “politics”. Why is that?

            I mean, “White” is an identity. So are “male”, “straight”, “cisgender”, and “Christian”. And if you think none of those groups emphasize their “group identity”, you’re paying less attention to what they do and more attention to what they say. Christians around the country try to shove their religion into government all the time (e.g., Ten Commandment monuments on public lands, passing laws mandating “In God We Trust” signs in schools), even if they say that they don’t want to force their religion on anyone. (Spoilers: They do.) But when was the last time you ever heard anyone refer to Christians exploiting their identity as “Christians” for the sake of pushing religion into the realm of the secular as “identity politics”? When have you heard anyone ever refer to, say, a White lawmaker criticizing racial equity measures for being “anti-White” as that lawmaker practicing “identity politics”?

            You can’t criticize the idea of “identity politics” and leave out the identities that you think aren’t actually “identities” at all. If you’re going to shit on the concept, you have to also shit on it whenever the most powerful/least marginalized groups use it. Refusing to do that makes you a goddamned hypocrite.

            reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 3 Jan 2021 @ 9:09am

            Re: Re: Re: Re: Sexism

            likely underlying blahblahblah bullshit. Let's make up labels and then project stories on people using those labels because we are uncomfortable with other classes being treated remotely equally.

            reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 30 Dec 2020 @ 11:31pm

    meh

    Definitely sexist, but the fewer patents the better. Same reason I liked DADT (as a queer woman).

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Dec 2020 @ 1:58am

    There is no Intellectual Property aspect to mathematics.

    One is not allowed patent, copyright or trademark upon mathematics.

    Can you imagine having to pay a licensing fee just to balance your household budget? Maybe they could include the licensing fee for mathematics in the price of a calculator, similar to the fee one is forced to pay for recording media that is capable of recording copyright material but is not exclusively.

    /rant

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 31 Dec 2020 @ 12:49pm

    You really understand this?

    How many people Sign off Their patents, when the goto work for major corps?
    How in the world does the EU White Male end up thinking he is the best of the best, and every Patent(at least 99% of them) They think are Theirs?
    There is no one to dissuade this IDEA. That There are others, Male/female/black/white/pink/Chinese/Japanese/Korean/ OTHERS that have added to this LARGE pile of data/information and Creativity.
    I do not know How we got to this point, but in the past, it seems a few things have changed TO THIS.
    And Corps taking everything a PERSON creates.(god I want a Cig, trying to quit)

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Jan 2021 @ 9:13am

    I’m just waiting for all the articles of how women are underrepresented in ditch digging, lineman work, garbage collection, construction, and trucking. Oh, and the articles of how women aren’t forced to sign up for the draft in order to vote, essentially making men second-class citizens. I’m not holding my breath.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Jan 2021 @ 10:22am

      Re:

      You can not vote without your draft card?
      When did this happen?
      When was the draft reinstated?

      reply to this | link to this | view in chronology ]

      • icon
        Bluegrass Geek (profile), 3 Jan 2021 @ 4:49am

        Re: Re:

        It's a red herring trotted out by misogynists to try and portray men as victims. The Selective Service System does legally require all men to register at age 18, but no one has been prosecuted for failure to register since the 1980s. Certain states have laws which tie financial aid (Federal loans, grants, etc.) to registration. Some states auto-register you when you apply for a driver's license.

        reply to this | link to this | view in chronology ]

  • identicon
    OGquaker, 4 Jan 2021 @ 3:48am

    A good film is in order to clear the air

    https://www.youtube.com/watch?v=NUUEY_PRVuw

    I borrowed the money to see the director in 1987

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Jan 2021 @ 9:55pm

    More definition-shift from the usual suspects

    "lack of women allowed to do the specialized work of filing patents".

    Apparently the authoress is unaware it is now Current Year! There's a very simple solution to this problem of women not being "allowed" to file patents (note: I did not find the relevant statute dictating this prohibition, but regardless...).

    No matter the genitalia one was born with, one may now simply declare their sex! It requires no more work than simply declaring it as such.

    For those who may wish to change race, height, or age, we're not there yet. But perhaps soon!

    reply to this | link to this | view in chronology ]


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