Senate IP Subcommittee Hearing on Improving Patent System Inclusivity Centers on Better Communication About Available Resources

Senator Marsha Blackburn (R-TN)

On the morning of Wednesday, April 21, the Senate Judiciary Committee’s Subcommittee on Intellectual Property held a hearing titled Improving Access and Inclusivity in the Patent System: Unleashing America’s Economic Engine. The discussion included panelists who represent many of the groups that are underrepresented in the U.S. patent system, with the intention of helping to inform both Congress and the U.S. Patent and Trademark Office (USPTO) on steps that can be taken to improve outreach to inventors from underrepresented groups and increase awareness of useful agency resources for prospective patent applicants.

Efforts to improve inclusivity within the U.S. patent system have taken on a new urgency in recent years. In February 2019, the USPTO released a report on women inventors (as directed by the SUCCESS Act), which showed that only 21% of U.S. patents granted between 1976 and 2016 listed a woman inventor. Both houses of Congress are also currently looking at passing the Inventor Diversity for Economic Advancement (IDEA) Act into law.

As members of the Senate IP Subcommittee leadership noted during opening remarks, there is evidence of great economic impact that can come through improving inventor diversity. This includes research by Michigan State’s Lisa Cook and Claremont Graduate University’s Yanyan Yang showing that inclusion of more women and African Americans in earlier stages of the innovation process could improve U.S. gross domestic product by as much as 4.6%. Senator Mazie Hirono (D-HI) noted in her opening remarks that many products we take for granted today, like the windshield wiper and home security systems, as well as major medical breakthroughs currently being developed, like CRISPR gene editing, involve important contributions from women and minority inventors Mary Anderson, Marie Van Brittan Brown and Jennifer Doudna.

High Hurdles

Leading off remarks for the witness panel was Georgia Grace Edwards, co-founder of the women’s activewear firm SheFly, which sells athletic pants with patent-pending zipper technology for easier urination while outdoors. She indicated that patents were central to SheFly’s business model, helping to signal legitimacy, establish a revenue stream and get a positive valuation from investors. Edwards discussed three specific barriers that SheFly has faced on the road toward getting a patent, including a lack of female representation in the entrepreneurial networks she used to build SheFly, a lack of insider knowledge of how to navigate the patenting process, and the costs of legal fees for filing patent applications, on which Edwards said SheFly has spent about half its revenue“The reality is that women and people of color are innovating, but many do not take the next step to patent because they face a variety of barriers,” said Angela Grayson, Founder and Principal Member of Precipice IP PLLC and Chair of AIPLA’s Diversity in IP Law Committee. Referencing testimony given during the 2019 Lost Einstein hearings held by the Senate and House IP Subcommittees, Grayson indicated that it was interesting to hear that inventors from underrepresented communities felt that there weren’t many resources available to help them, citing the availability of the Patent Pro Bono program and regular educational programming at the USPTO, as well as entrepreneurial resources made available through the Small Business Administration as well as the Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) grant funding programs.

Mallun Yen, Founder and Partner of the Operator Collective, discussed how women in executive IP roles with major tech corporations were so rare when she worked at Cisco in 2005 that she and six other women chief patent counsels, including Google’s Michelle Lee, who would go on to serve as Director of the USPTO during the Obama Administration, founded the ChIPs Network. ChIPs is now the largest organization for women in patent law with 4,000 members in 17 chapters around the world. Through Operator Collective, Yen has worked to build a community of operators, including investors and executive personnel with experience scaling up companies after their founding, among underrepresented communities including women and people of color. “Most people aren’t trying to exclude these operators, it’s just that the system was not built for people who give 150% to their day job and use any time left over for their families,” Yen said. In her testimony, Yen advocated for greater outreach to underrepresented communities as well as more accessibility to USPTO resources, ideally by increasing the agency’s number of satellite offices as well as amending eligibility requirements for the Patent Pro Bono to better serve those from groups with traditionally low rates of patenting.

Talent Gone to Waste

Referencing NASA’s Apollo 13 crisis in 1970 and that agency’s dogged pursuit of solutions to bring its astronauts home, Lateef Mtima of the Howard University School of Law noted that the U.S. government has long understood the need to capitalize on ideas coming from the great diversity of the nation’s citizens. “Unfortunately, such has not always been the case for our patent system or our IP ecosystem as a whole,” Mtima said, “To paraphrase blues great Robert Cray, ‘like food left out all night, it’s talent gone to waste.” Among his proposals for improving inclusivity in the U.S. patent system included a national grassroots program for IP outreach to underrepresented communities, a pre-prosecution patentability assessment pilot program for low-income inventors to better target promising patent applications with limited resources, and a study on ways to better incorporate STEM and IP topics into the K-12 student curricula across the nation.

One of the hearing’s continuing themes was the difficulty faced by inventors from underrepresented communities in gaining a basic grasp of intellectual property or how to obtain patent rights. Edwards, who called SheFly’s experience with the patent prosecution process “long, clunky, opaque, and bureaucratic – and that’s my kindly worded, highly edited description of the process,” said that she never learned much about IP while growing up in the Appalachian region of Western Maryland until attending the Middlebury Entrepreneurs program, where she built SheFly, and even then she was unaware of resources like the Patent Pro Bono program that could have provided financial relief.

The Need for Grass Roots Outreach

This lack of awareness of available resources was echoed by many attendees at the hearing. Senator Marsha Blackburn (R-TN) noted that she had recently had conversations with a pair of entrepreneurs from minority backgrounds in which she asked those individuals if they had considered patenting. “Their immediate response to me was, ‘Well, no, but how would I do that? Who would I go talk to?” Blackburn said. “The challenge is not knowing how to navigate this system.” As Grayson noted, although the USPTO has ample educational programming and disseminates information about resources through various channels, including email listservs, part of the issue is ensuring that this information finds its intended audience.

In advocating for ways to break this informational barrier, Mtima focused on the importance of building programs at the grassroots level to break through fears and uncertainties related to interacting with government agencies and lawyers that may be groundless but are nonetheless felt by many in communities underrepresented within the U.S. patent system. “Nobody likes to go to the dentist, and it doesn’t make it even better if the dentist offers to make a house call,” Mtima said. When bringing information to underrepresented communities through local outreach programs, Mtima indicated it was important to structure that information in a way that doesn’t intimidate people. Yen echoed this intimidation factor in discussing eligibility for the Patent Pro Bono program, which includes a knowledge requirement to either have a provisional patent application on file at the USPTO or complete an online certificate training course. “There are some requirements that when you read them sound a bit daunting, but when I clicked through it and actually took the course… it’s actually not as daunting as it sounds like,” Yen said.