United States: Gender Diversity In Patenting: Current Landscape And Recommendations

A bipartisan group of U.S. representatives in July introduced a little-noticed but ultimately popular piece of legislation in response to reports that point to a gender, race and income gap in patent filing and grant rates. A 2018 report, published by researchers at the Yale School of Management, indicates that only 10 percent of U.S. patent inventors are female, and that more than 80 percent of patents list no female inventors. Aiming to identify best practices for increasing patent filing and grant rates for women and other underrepresented individuals, representatives led by Barbara Comstock (R-VA) introduced H.R. 6390, the Study of Underrepresented Classes Chasing Engineering and Science Success (SUCCESS) Act.

Goal of the SUCCESS Act

The SUCCESS Act would instruct the Small Business Administration to conduct a study and provide recommendations for promoting the participation of women, as well as socially and economically disadvantaged individuals, in entrepreneurship and patenting activities. Such a study, particularly if conducted jointly with the U.S. Patent and Trademark Office, would provide suggestions for how the USPTO and private sector could work together to increase the reported social, economic and gender gaps in patent filing and grant rates.

Although the SUCCESS Act did not make headlines, it quickly attracted significant support. By the end of August, the American Association of Medical Colleges, the Association of American Universities, the Association of Public and Land-grant Universities, the Association of University Technology Managers and the Council on Governmental Relations had all endorsed the act.

Evidence of a Gender Gap in Patenting Rates

In their study, published in April 2018, Kyle Jensen, Balázs Kovács and Olav Sorenson at the Yale School of Management took a closer look at the impact of gender on several stages in the patent process. The study examined 2.7 million patent applications filed between 2001 and 2014 and identified the probable gender of each inventor based on Social Security information and other databases.

The study found that much of the gender-based variation in patent prosecution outcomes could be attributed to the technology category. Female inventors are more prevalent within technology classes that have overall lower patent acceptance rates. Previous studies have confirmed this, noting that women continue to be underrepresented in patent-heavy fields like electrical and mechanical engineering and in patent-focused roles like development and design. By contrast, women are better represented in fields with fewer patent filings, such as the life sciences industry.

The authors of the report conducted a second analysis designed to take into account variations in outcomes across different technology fields, and they still found significant differences in patent prosecution outcomes by gender. This suggests that there are other factors reducing female involvement in the patenting process that cannot be accounted for by lower female representation in certain fields and roles.

Comparing various outcomes for patent applications by all-female teams to those by all-male teams, taking into account the variation in outcomes between different technology fields, the study found that patent applications for all-female teams:

  • Were 7 percent less likely to be granted
  • Were 2.5 percent less likely to be appealed after rejection
  • Had 2.5 percent more words added to their claims during prosecution, indicating that these patents had been narrowed more during prosecution
  • Were 4.3 percent less likely to be maintained by their assignee
  • Received 11 percent fewer citations from other patent applicants, suggesting a lower perceived importance, scope or value
  • Received 3.5 percent fewer citations from patent examiners

The authors further broke down these results by attempting to isolate USPTO bias from that of other actors. The researchers examined results for inventors with relatively common names, such as Mary or Robert — where examiners would have been able to easily infer gender — and inventors with relatively rare names like Jameire and Kunnath. The gendered difference in patent prosecution outcomes between female inventors with common names and male inventors with common names was similar to the difference for all-female and all-male teams, about 8 percent.

Patent applications for female inventors with rare names — that are not strongly associated with gender — were only 2.8 percent less likely to be granted (compared to the 8 percent less likely for inventors with common female names) than patent applications by rare-named male inventors, and rare-named female inventors had a significantly higher number of forward citations by other applications.

Since examiners commonly do not have direct contact with inventors, they are often less able to discern the inventors' gender. The improvement in outcomes when inventors' genders are not known to examiners (but are known to other participants) suggests that at least part of the gender bias may be introduced at the USPTO.

Steps Companies Can Take to Bridge the Patenting Gender Gap

Companies and lawyers can take important steps to support female inventors and reduce bias in the patenting process.

A key first step in reducing bias is being cognizant of the reported gender disparity in patents, but companies can also take proactive measures to minimize the chance of bias in patent filing decisions and their ongoing patent programs.

1. Educate Women about Patenting
As the numbers indicate, many female engineers and scientists have not engaged in the patent process, so they are not familiar with how it works. Fenwick runs periodic informational sessions about the patent process to groups of engineers at clients' offices, and these events are typically well-attended by women, who are eager to learn more about the process. Short informational sessions can bring a lot more first-time female inventors, as well as other first-time inventors, to the table.

To increase submissions by women, companies can also make sure the invention disclosure process is easily accessible to all employees, rather than just employees who have patented ideas already. For example, companies can provide all employees with an invention disclosure form with clear instructions for how to fill out and submit the form.

2. Implement a Blind Disclosure Process
In-house counsel or patent review boards within companies often receive written submissions of invention disclosures and review these disclosures for potential value and patentability. A blind disclosure process, where inventor names are hidden during review, can reduce any bias that might exist in the initial assessment. For example, companies can use a submission system that stores inventors' names but hides the names from decision makers until after they have decided whether to pursue the invention.

3. Create a Blind Prosecution Process
Companies can also make prosecution decisions, such as whether to file an appeal, continue prosecution, narrow the claims or pay maintenance fees, without referencing or considering the inventors' identities.

One easy way patent practitioners can implement a blind prosecution process involves a small adjustment in their client communications. When requesting input from in-house counsel, outside counsel often list inventors' names in their emails. By removing the inventors from the email templates, in-house counsel can make decisions without the inventors' genders unconsciously impacting their decisions.

During prosecution, it is often helpful to confer with inventors, so a completely inventor-blind prosecution could do more harm than good. One solution is to remove inventors' identities from only some key decisions made by the legal team, such as whether to abandon a case for financial reasons. This process can reduce bias without reducing the role of the inventor in key parts of the process.

The Benefits for Companies and Inventors

Increasing female involvement in the patent process can benefit female inventors as well as companies in all stages of growth. At the startup level, decreasing gender bias in patenting rates can help bridge the gender gap in startup financing. Studies have shown that women-run startups typically receive less funding than startups led by men, and patents can be an important quality signal to investors when considering whether to fund a company. Beyond early-stage companies, businesses of all sizes gain value by protecting more innovations—whether they are created by female or male employees. Tackling this larger structural and cultural issue requires action from both the public and private sectors—and the changes companies can make, along with tips and insights potentially available through the SUCCESS Act, are a good place to start.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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