Cindy Lui, 1L Windsor Law Student, LTEC Lab Researcher
April 10, 2023
On March 22, 2023, Windsor Law LTEC Lab hosted the LTEC Lab Seminar Series: The Patent Equity Project. The seminar brought together various faculty, community members, and student clubs such as Women and the Law (WATL) and Legal Innovation Hub to learn about patent law and its intersection with gender and equity.
After a wonderful brunch, LTEC Lab welcomed Professor Jordana Goodman, a lecturer at Boston University School of Law & Innovator in Residence at MIT. Professor Goodman presented her research which addressed the importance of attribution, the extent of diversity gaps in U.S patent representation, and potential solutions. Her work builds on her prior experience as a patent prosecutor at a boutique IP law firm where she was curious as to who was getting credit for patent-related work and how it needs to be equitable. Afterwards, Professor Wissam Aoun, Associate Professor at Windsor Law and current LTEC Lab member, provided some commentary on the presentation of Professor Goodman.
Why Giving Credit Matters?
"It is important to give proper credit as a matter of equity, especially in STEM where each incremental progress is so fundamental within the field."
Professor Goodman began her presentation with a picture of a lightbulb. When someone looks at a lightbulb, they immediately think of Thomas Edison as the inventor. However, a lack of credit is given to Lewis Latimer, a Black inventor who worked on the filament of the lightbulb. Another example is the DNA which people associate with James Watson and Francis Crick. However, the work of Rosalind Franklin, the woman behind the discovery, often goes unrecognized. As a result, Professor Goodman looks to recognizing women and people of colour who have contributed to STEM and elevate their work where they are unduly going unnoticed. It is important to give proper credit as a matter of equity, especially in STEM where each incremental progress is so fundamental within the field. She acknowledges that it does not cost much to add additional lines of extra names or to order them in a particular way. Not giving acknowledgement only causes greater harm.
Patent Prosecution
In the U.S., credit for a patent agent or attorney is not required. Any individual who passes the patent bar can sign off on the patent application regardless of how much work they have done on that particular assignment. However, partners will usually sign because they are the individuals who are the main liaison with the client. As a result, it does not indicate who has actually done the work. In Canada, similar attribution issues exist. The patent online filing system typically allows only one patent agent or firm to be listed.
There are four stages to patent prosecution in the United States:
1) Write: A client comes in with an idea in which the patent prosecutor would write the patent application that meets the Patent Office’s standards and submit it.
2) Submit: Once it has been submitted, the patent prosecutor will sign an application data sheet with their name and that they are responsible for the contents of the application.
3) Argue: The patent prosecutor will then argue back and forth with the examiner about the scope and validity of the patent claims.
4) Allowance: Once there is allowance, the patent prosecutor will sign the proper forms regarding payment and the grant of a patent occurs.
Attorney Representation on Issued Patents
In the US, women make up 22% of all people who passed the patent bar, yet women attorneys are still underrepresented compared to their male counterparts with respect to signing the patent application. The common perception is that there is a “leaky pipeline” problem. This problem states that women are not signing at the same rate as men because they did not get through various steps such as finishing school at the same rate as men, not majoring in STEM, not going to law school, or failing the patent bar exam. Data shows that women are graduating from high schools at higher rates than men, women make up 45% of STEM majors, and law schools are more populated with women than men. Professor Goodman’s research investigates the reasons behind the underrepresentation of women patent prosecutors
relative to the overall pool of registered patent prosecutors.
Adding More Lines = Adding More Attribution
In American patent law, during the application process such as the actual drafting of the application, only one patent agent / firm can be named . However, at the end of the office action response, there is an opportunity for more than one person to be named When people take advantage of that possibility, e.g. naming two or three people, there is a higher fraction of female patent agent/attorneys being named. Therefore, Professor Goodman proposes encouraging the US Patent and Trademark Office to add more lines to name more patent agents/attorneys at various stages of the patent prosecution process. This would allow for more accurate attribution for the patent work and the costs for doing so are minimal and would enable more credit being given to women attorneys.
Underrepresentation of Female Inventors
Professor Goodman then looked at female inventors. Patents listing at least one female have increased from 1970 to 2021, but that does not mean that there are more female inventors. Factors such as including more names or the term “inventor” applying to different groups might demonstrate that people are being more inclusive, but it does not necessarily mean that the gender gap is getting better. Women comprise 29% of the STEM workforce, but only make up 12.8% of US patent inventors.
Between 2005 to 2022, there were around three million patents. Professor Goodman did a gender-match exercise, using the World Gender Name Database 2.0 and divided the results by size of the inventor group. She found a correlation between the size of inventor groups and attribution of women. When team sizes increase, the representation of female inventors also increases. She compared team sizes of five and team sizes of one, finding that there was a greater proportion of female inventors in a team size of five. Professor Goodman suggests that this may be a result of more teams of all five women compared to all five men, demonstrating that there is a lack of mixing of teams despite a better inclusion metric.
She conducted an equity test to calculate percent differences in team representation using two baselines: who is working in STEM in the US and who is being named on patent applications that year. Her chart demonstrated that overtime, all female teams were being overrepresented while mixed teams of male and females did not change. Women were definitely being more represented than they were in 2005, but not because men and women were suddenly working together better or in bigger groups. In fact, there was a greater segregation of women and men working in the industry. She noted that there are several reasons why this may have happened, including mixed groups not forming, or these groups form and are unsuccessful, or when they do form, they are successful, but people are not being attributed equitably.
Professor Goodman concluded her presentation by proposing the solution of changing the language. Language needs to be inclusive of all groups. In some teams of five, the makeup might be four men and one woman, and they may not succeed at the same rate as other groups. Those four men may not be included if they are trying to include a woman in the team. As a result, those men need to be part of the discussion in parity because it is inequitable to say that an individual on the team is being harmed when the entire team is being harmed. She also did not want to tokenize individuals, but rather that diverse teams that do form need to be given the ability to succeed as much as any other group distributions. Finally, she emphasized the importance of sharing responsibility for the group as a whole rather than one inventor who might be underrepresented.
From left to right: Professor Wissam Aoun, LTEC Lab Member, and Professor Jordana Goodman at The Patent Equity Seminar.
Professor Aoun followed Professor Goodman’s conclusion with a few comments and questions. He began by acknowledging that Professor Goodman’s research is groundbreaking with little comparable work in patent scholarship. Earlier in the presentation, Professor Goodman raised that during 2020, about 10 women were named on over 300 office action responses as compared to two in 2015 and zero in 2017. She was interested in looking at how 2020 provided the ability for women to credit themselves more. She was curious as to see whether it resulted from having equitable childcare and child caring responsibilities with their partner which might not have existed before. Professor Aoun was fascinated by the noticeably higher statistics in 2020 as that was the year of the pandemic. As a result, since people were working from home, there was a deviation from the law firm structure where certain partners take credit for other people’s work.
Professor Aoun then asked whether it is the practice of law or some other factor that contributes to a lack of women receiving credit. Professor Goodman responded that it is the law firm structure and the practice of law itself. Although she could not quantify it, she focused on the idea of choice. Most women chose to leave big law firms after five years of graduating in the United States, either deciding that they did not want to work in law anymore or would continue working in law, but part time. She was interested as to whether those part-time structures resulted in a more equitable distribution of credit.
Chhavi Monga, Windsor Law JD 2024 commented: “I thought the instructor's unwavering enthusiasm for the topic at hand, coupled with their steadfast encouragement for all students to address the issue of underrepresentation of women in patent law and legal research teams, was truly commendable. Their exceptional ability to draw parallels between diversity and real-life situations, and to transform them into quantifiable data, was truly noteworthy. Overall, the professor delivered a remarkable performance, inspiring students to take actionable steps to enhance diversity and inclusion within the legal field. Additionally, I have never witnessed anyone extract research data on legal research teams with varying gender ratios, as this data is typically limited to general statistics or individual patents. The professor's ability to collect and analyze such intricate information was truly impressive and contributed immensely to the discussion on diversity within the legal field.”
It is important to credit people equitably for the work that they have done, whether they are working as an attorney or working as a scientist, or in any other capacity. Proper attribution costs little, and has rippling effects beyond being rightly mentioned on a patent application. It paves the way toward more equality in STEM for women and disenfranchised and underrepresented minority groups.
LTEC Lab thanks Professor Jordana for sharing her passion, expertise and insights on an underexplored academic field of research. The recording of the event can be found here.