Senate IP Subcommittee Witnesses Offer Solutions for Finding ‘Lost Einsteins,’ But Miss Opportunity to Discuss Broader Patent Problems

On the afternoon of Wednesday, April 3, the Senate Committee on the Judiciary’s Subcommittee on Intellectual Property held a hearing titled Trailblazers and Lost Einsteins: Women Inventors and the Future of American Innovation. The day’s discussion on the U.S. Patent and Trademark’s recent report on gender disparity in patenting rates covered much of the same ground as the House Intellectual Property Subcommittee’s hearing on the same topic from the previous week, although a new witness panel was able to provide some fresh perspective on the issues. However, there were arguably some instances where the witnesses either supported or acquiesced to policies that damage the patenting prospects for at least some female inventors.

Senator Blackburn: Why Lost Einsteins and Not Lost Marie Curies?

“We use the term Lost Einsteins in today’s hearing for a reason,” said Sen. Thom Tillis (R-NC), Chair of the Senate IP Subcommittee, in his opening remarks. “For every woman we fail to encourage to invent and innovate, our economy misses a chance to find the next new and revolutionary technology which can change lives and enrich millions.” Although the USPTO report indicated that the share of patents listing at least one women as an inventor had risen from 7% in the 1980s up to 21% in recent years, Tillis said that improvement wasn’t the kind of progress that he expected to see over that period of time.

“I appreciated the title ‘Lost Einsteins,’ but I have to tell you, Mr. Chairman, I was a little bit curious as to why we didn’t call it ‘Lost Marie Curies,’” said Sen. Marsha Blackburn (R-TN) at the top of her opening remarks. Blackburn’s own personal experience as an entrepreneur and a small business owner had shown her that there were many hurdles that women face when they try to operate in certain segments of the American economy. “You know you have a great idea, but being able to push that idea through development and move it to the point [of] commercialization and profitability,” is the challenge, she said. “And there are so many obstacles and barriers to entry that you’re going to face along that path.”

While she recognized that the day’s hearing wouldn’t solve every problem in this regard, Blackburn indicated her hope that the subcommittee could find ways that the federal government could level the playing field and increase opportunities for women inventors.

In his opening statement, Sen. Chris Coons (D-DE), Ranking Member of the Senate IP Subcommittee, said that the hearing gave the subcommittee an opportunity to discuss a topic that was “genuinely bipartisan”: a commitment from both parties to improve participation in the innovation ecosystem. “Talent is distributed evenly across the human genome and yet participation in invention and innovation, and in particular patent protection, is not,” Coons said. “That jeopardizes our ability to lead globally and undermines our investments in a brighter future.” He noted that the Senate had recently passed legislation known as S. 3321, the Hidden Figures Congressional Gold Medal Act, which was introduced to confer Congressional Gold Medals, the highest civilian award in the U.S., to the real life African-American women who served as NASA engineers and were memorialized in the 2016 film Hidden Figures.

Witnesses Discuss Greater Women Leadership in Academia, Economic Benefits of Patent Ownership

The first witness to give testimony was Robin Rasor, Executive Director of the Office of Licensing and Venture at Duke University. She spoke to the idea that more women in leadership roles at academic institutions would have a positive impact on women overcoming barriers to entry in STEM and innovation. However, although 60% of undergraduate and master’s degrees are earned by women, Rasor said that men made up the majority of faculty positions at American research universities. Further, although half of the administrative positions in American higher education are filled by women, only 30% of the top positions are occupied by females. Rasor gave a lot of credit to her employer, Duke University, where 70% of the administrators, including the Provost, were women. She also discussed Duke’s Academic Leadership, Innovation, and Collaborative Engagement (ALICE) Program, an initiative for leadership development among women in Duke’s School of Medicine.

The impact of low patenting rates on the economic prospects of women was discussed by Dr. Barbara Gault, Executive Vice President of the Institute for Women’s Policy Research (IWPR). She cited research noting that women-owned businesses were less than half as likely as male-owned firms to own a patent and were also half as likely to reach $1 million in startup funding. Other IWPR studies had also shown that those women-owned businesses that did have a patent application pending at the U.S. Patent and Trademark Office (USPTO) enjoyed revenues 16 times higher on average than women-owned firms without similar intellectual property rights. Despite Rasor’s statistics on the large percentage of women earning undergraduate and master’s degrees, Gault cited other research showing that only one in five undergrad degrees in computer science and engineering that were handed out in 2015 went to women. Gault provided four recommendations for the Senate IP Subcommittee to consider:

• Implement training programming for women and minorities that draws on models such as the University of Florida’s Empowering Women in Technology Startups;
• maintain a laser focus on increasing women’s participation in the U.S. patent system by maintaining and strengthening programs which support that goal;
• encourage more private investment in women-owned ventures through the implementation of inclusive investing curriculum like those seen in programs such as the Association of Women in Science’s STEM to Market programming; and
• increase demographic data collection on patenting, such as through voluntary submissions to the USPTO that are made separate from patent applications.

Dr. Patricia Bath On Her  Nettie Stevens Moment

Personal experiences on the barriers faced both by women and minorities were offered by Dr. Patricia Bath, President of the American Institute for the Prevention of Blindness and the first female African-American doctor to be awarded a U.S. patent for a medical invention. She cited research that showed that children from the top 1% of income-earning families were 10 times as likely to become inventors as children from below median income-level families, underscoring the importance of getting financial and educational resources to children from those families. She discussed experiences she shared with Hidden Figures personas like Katherine Johnson; like Johnson, Bath had seen her own scientific contributions included in publications without being properly credited for her work. She also talked about the historical figure of Nettie Stevens, the female researcher who discovered in the early 1900s that sex determination of animals was tied to the Y chromosome, but whose work has often been credited to her male colleague, Thomas Hunt Morgan. Bath discussed her own “Nettie Stevens moment” in 1978, when her research on the prevalence of blindness among African-Americans was credited to Johns Hopkins instead of her.

Perspectives on the private sector’s efforts to increase participation among women scientists and engineers were provided by Sandra Nowak, Assistant Chief Intellectual Property Counsel of 3M Innovative Properties Company. She discussed various 3M initiatives designed to increase the pipeline of women and diverse STEM employees, including community outreach programs to students in grades K-6, grades 6-12 and collegiate levels of schooling, as well as 20 Lean In circles operating at 3M, which provide mentoring and support among 3M’s female engineering employees. Nowak noted that 3M was also working on a toolkit that would be made publicly available this fall that would help businesses and organizations assess their own gender disparities, find the root causes of such disparities and suggest targeted practices for addressing those problems. “No one wants to wait another lifetime for gender parity in innovation,” Nowak said, “and quite frankly we cannot afford to continue to let the innovations of our lost Einsteins go unnoticed.”

Effects of First-to-File and Section 101 Law on Women Inventors

In talking about ways that women and minority inventors could overcome the barriers keeping them out of the U.S. innovation ecosystem, Dr. Bath touted one of the America Invents Act’s key changes to the U.S. patent system: first-to-file. While some might argue that a first-to-file system actually disadvantages small inventors, as it requires them to rush to file a patent application in order to prevent any third-party disclosures that could negatively impact the prospects for a successful patent grant, Bath saw it as a positive:

“I would also like to point out two other things that are going to benefit small inventors. In the United States, we had a patent system that was based on first-to-invent rather than first-to-file. Fortunately, in 2013, the law changed and that was a benefit to small inventors and small entrepreneurs.” – Dr. Patricia Bath

Bath also noted that the creation of the provisional patent application in 1995 provided a lower-cost option that gives women and minority inventors with less financial resources a better chance to obtain patent protections for an invention.

At a different point in the questioning period, another one of the panel witnesses missed what seemed like an obvious opportunity to advocate for legislative changes that would improve patenting prospects for all inventors, women included. In responding to a question from Sen. Tillis on positive steps that could increase the number of female inventors, Rasor said:

“I also should point out, not all inventions are patentable. We see a lot of inventions now that are more copyright: software, machine learning, things like that. So, we should focus on all innovation, not necessarily just patents.” – Robin Rasor

Sen. Tillis quickly interjected to note that efforts on providing a legislative fix to Section 101 patent eligibility could very well render such inventions as being eligible for patent protections.

Fixing the “Leaky Pipeline” and Addressing President Trump’s Budget Cuts

Elsewhere during the question period, Nowak spoke to the importance of improving retention among women in the STEM workforce in response to what she called a “leaky pipeline” through which women tend to leave STEM professions at a faster rate than men, even as women comprise a smaller portion of that workforce. Dr. Gault suggested that making corporate job performance contingent upon finding ways to promote women and minorities would likely add a sense of urgency to solving the female inventorship issue. Dr. Bath and others lauded California’s efforts to pass state legislation that requires public companies having executive offices in California to include at least one woman on their corporate boards.

Sen. Richard Blumenthal (D-CT) noted that the recent 2020 fiscal year budget released by the administration of President Donald Trump includes cuts to the Small Business Administration. Citing to a recent report released by the Democrats of the House Committee on Small Business, Blumenthal said that the Trump Administration’s budget would curtail funding for programs supporting entrepreneurship among women and minorities. Dr. Gault noted that any resources that women and minorities receive would make a great difference in their ability to start and succeed in business. She agreed with Blumenthal that the Women’s Business Center and microloan programs that would have their funding reduced by the 2020 fiscal budget have had a positive impact on the U.S. innovation ecosystem.