In her paper, Hannon argued that it is vital to increase gender diversity at the Patent Bar because women inventors are partial to hiring a female patent attorney, particularly when their invention relates to a product for women.

Take Spanx founder Sara Blakely, who sought a female patent attorney during the process of securing rights to her invention which would lead to her becoming one of the world’s youngest self-made billionaires.

Blakely believed that a woman would be best-placed to understand her product—shaping briefs and leggings for women. However, Hannon revealed, Blakely had been unable to find a single female patent attorney in the state of Georgia.

The status quo

What, according to critics such as Hannon, is the problem with the status quo? At present, to become a US patent agent or attorney, candidates can demonstrate qualifications in three ways. First, they automatically qualify if they possess one of 32 specific bachelor’s degrees covering technical expertise, such as biology, physics, chemical engineering and microbiology under category A.

If they have a non-listed bachelor’s degree, they must prove they have taken sufficient semester hours in physics, chemistry, biology, botany, microbiology, molecular biology, or engineering to qualify under category B. Finally, they can demonstrate practical engineering or scientific experience under category C.

According to Hannon, the key issues are that the existing criteria are exclusive and inconsistent. First, they exclude a number of suitable degrees from category A, such as neuroscience, biomechanical engineering, and genetics, which are disciplines in which women tend to outnumber men, she argues.

While individuals without a category A degree can still qualify, they must jump through additional hoops in order to satisfy the category B requirements, which Hannon believes creates additional burdens.

According to the National Center for Science and Engineering Statistics, women earned approximately half of all science, technology, engineering and maths (STEM) bachelor’s degrees in 2016, but they earned only 21% of the bachelor’s degrees awarded in engineering, and 19% of the bachelor’s degrees awarded in physical sciences such as chemistry and physics.

Conversely, women earned the vast majority of bachelor’s degrees awarded in psychology (75%), biological sciences (55%), and social sciences (55%).

Hannon contends that the simplest way in which the USPTO could foster gender diversity within the Patent Bar would be to broaden the scope of category A.

Relaxing the stringent requirements of category A to embrace more STEM-adjacent degrees, such as mathematics, biological sciences, psychology, biomechanical engineers, robotics, and those that are tangential to STEM such as nursing and pharmacy would, she argues, diversify Patent Bar membership.

There are systemic barriers keeping qualified women out of the Patent Bar, warns April Abele Isaacson, partner at Kilpatrick Townsend & Stockton in San Francisco.

“When I took the Patent Bar nearly 20 years ago, computer science majors were not eligible to sit for the Patent Bar at all; even now, the accreditation rules fail to encompass many legitimate degrees. The current and proposed specified bachelor’s degrees exclude many STEM majors offered at liberal arts colleges.”

Jumping through hoops

Earlier this year, the USPTO released statistics showing who, based on gender, qualified for the Patent Bar exam under what category. These revealed that a large majority (75%) of candidates qualified under category A; 25% qualified under category B; and less than 1% under category C. Of those who qualified under category A, 67% were men and 32% were women.

“It appears more women had to qualify under the more onerous category B,” points out Linda Thayer, partner at Finnegan in Boston.

“It seems fairly obvious that women had to do so because their degrees were more frequently not among the category A-approved degrees. That they were ultimately successful under category B shows that their field of study was, in the end, found worthy, but they had to jump through more hoops to show it,” she says.

“How many women may have been turned off by the additional requirements and decided not to apply? We may never know.”

Vera Suarez, partner at Haynes and Boone in Texas, agrees that a revamp is necessary. “Updating the requirements allows equally qualified candidates—some of whom are women—to sit for the Patent Bar,” Suarez contends.

“The fact that these excluded qualified candidates are often women and that updating the requirements will decrease the gender gap is a happy by-product.”

A question of design

In his December letter, Iancu said the USPTO was considering adding more subjects to the category A list, including aerospace engineering, marine engineering, neuroscience and genetics.

The USPTO could also accept postgraduate degrees in the category A subjects in order to expand the pool of potential applicants, Iancu said. Finally, the office is considering accepting a combination of core sciences.

Critics say this doesn’t go far enough. They argue that many people qualified to prosecute patents, particularly those in the design field, would continue to be excluded from the Patent Bar—with the overwhelming majority of those excluded being women.

Chris Buccafusco, director of the IP programme at the Benjamin N. Cardozo School of Law in New York, argues that in every other area of the law, no matter how technically or legally complex, clients can select any attorney they want.

“Only for patent prosecution do we restrict the pool of attorneys whom clients can hire,” he argues.

This bias, contends Buccafusco, is especially problematic for design patents.

“People with degrees in chemistry and computer engineering can prosecute design patents, but people with degrees in industrial design, fashion design, and architecture can’t. This is completely irrational, and the USPTO knows it,” says Buccafusco.

In February, Buccafusco and fellow academic Jeanne Curtis, adjunct professor at the New Hampshire School of Law, wrote to the USPTO, urging it to extend Patent Bar eligibility to design patent practitioners to increase the number of women patent attorneys and inventors.

The letter highlighted that women comprise the majority of students at leading industrial and fashion design schools such as the Parsons School of Design (78%), Rhode Island School of Design (69%), and Fashion Institute of Technology (85%).

Lowering standards?

Not everyone has been convinced by these arguments. Gene Quinn, patent attorney and founder of IPWatchdog, has criticised Hannon’s suggestions to broaden the criteria. In his blog, he held that expanding the requirements is “simply another way of saying the requirements should be lowered”.

Quinn further argued that as the US Court of Appeals for the Federal Circuit, corporate clients and inventors continue to expect more technical expertise, it would be problematic if people were allowed to become patent practitioners without the requisite academic background.

“Will anyone feel good if more women suddenly become patent practitioners, but they are unable to find jobs as patent professionals?” he asked.

The answer to the gender gap at the Patent Bar, he cautioned, lies in fostering an interest in STEM careers among girls from an early age.

“The solution to this very real problem is not to impose a lowering of the requirements on the back-end, but rather to do something on the front-end,’ he wrote.

The USPTO does an adequate job in ensuring that candidates meet the scientific and technical qualifications to sit for the examination, echoes Christopher Turoski, director, patent law programmes, at the University of Minnesota Law School. He believes, however, that one of the main barriers to achieving greater diversity at the Patent Bar is economic—rather than any systemic flaw within the office’s qualifications criteria.

According to Turoski, the cost of becoming a patent attorney is simply prohibitive for many potentially excellent candidates. For example, pursuing a Juris Doctorate can cost in excess of $150,000 in tuition before scholarship.

In response to these concerns, Hannon concedes that overhauling the Patent Bar’s qualification requirements will not solely resolve the gender gap but insists that her proposed changes could provide a first step towards meaningful change.

“While the USPTO has a reasonable basis for requiring some technical expertise, the current system results in the exclusion of qualified women from the practice. Changing the criteria to be more inclusive makes sense for all parties, and does not degrade the standards or quality of the Patent Bar,” she concludes.

When approached by WIPR for comment, the USPTO cited comments made by commissioner for patents Drew Hirshfeld in an interview with IPWatchdog where he confirmed that the office would look at the proposal outlined in its review. “These changes make sense, and they streamline the process,” Hirshfeld stated.

He added: “If there is going to be a larger conversation about whether there is a need for a separate Design Bar, for example, it will be with public input and complete transparency.”