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