“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.”
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.
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 [email protected] 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.
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