Everything about litigation, specifically patent law, is set up to promote the male agenda and exclude anything even remotely feminine, forcing the existence of women in these spaces to be few and far between

(Paul R. Gugliuzza, James E. Beasley Professor of Law at Temple University’s Beasley School of Law, B.B.A. from the University of Oklahoma, JD from the Tulane University School of Law, expert in intellectual property and patent litigation; Rachel Rebouché, Kean Family Dean of Temple University’s Beasley School of Law, Peter J. Liacouras Professor of Law, BA from Trinity University, LLM from Queen’s University, JD from Harvard Law, “Gender Inequality in Patent Litigation”, https://go-gale-com.proxy.lib.umich.edu/ps/i.do?p=AONE&u=umuser&id=GALE%7CA719644569&v=2.1&it=r&aty=ip) //GB

The bar that litigates patent cases before the Federal Circuit, however, is far less diverse. As the empirical study presented by this Article shows, over the past decade, the Federal Circuit has heard over 6,500 individual oral arguments in patent cases. Women presented only 825 of them, or 12.6%. (4) The usual explanation for gender gaps like that is that practicing patent law often requires a degree in certain technical fields--engineering, chemistry, computer science, or microbiology, for example (5)--in which women have historically been underrepresented. (6) But the notion that careers in patent law are only for those with backgrounds in the hard sciences is increasingly wrong. (7) Patent cases today are handled by the most prominent generalist litigators in the country, including well-known appellate advocates such as Paul Clement, Carter Phillips, and Seth Waxman. (8) Those lawyers have no special background in patent law or technology, but the world's largest companies trust them to handle their most high-stakes patent disputes. Yet, even though the practice of patent law is no longer the exclusive domain of lawyers with scientific backgrounds, the stereotype of the patent bar as overwhelmingly male remains accurate.

Still, as this Article also shows, there is at least one patent litigation role in which women appear just as frequently as men: representing the government at the Federal Circuit. Of the 616 arguments presented to the Federal Circuit in patent cases on the government's behalf since 2010, 298 (48.4%) of them were presented by women. (10) This phenomenon--women disproportionately appearing on behalf of the government in a field otherwise dominated by men-is not unique to Federal Circuit patent cases. For instance, as this study's data show, Supreme Court arguments in all types of cases (not just patent cases) are overwhelmingly presented by male attorneys: 83.4% from 2010 through 2019. (11) The comparatively few women who argue at the Court disproportionately do so on behalf of the federal government. Over the past decade, 48.8% of the oral arguments presented by women at the Supreme Court (143 of 293) were by attorneys from the Office of the Solicitor General. (12)

By documenting the absence of women in patent litigation, particularly representing private litigants, this Article provides original evidence of the persistent underrepresentation of women in high-stakes commercial litigation more generally. It also adds to recent literature documenting how the modern, "winner take all" corporate model favors what has been called a ''new boys club"--an insular, self-serving network that thrives on "masculinity contests." (13)

The appellate patent bar is, arguably, such a club. Though nearly 2,800 lawyers have presented at least one argument in a Federal Circuit patent case over the past decade, a mere ninety lawyers account for almost one-quarter of all arguments. And of the sixty-four private-sector lawyers in the top ninety, fifty-nine--or 92%--are men. (14) By spotlighting the significant gender imbalance at the highest levels of patent law practice, this Article underscores the importance of remaking the upper echelons of the legal profession to be more representative of law school graduates and the population of lawyers at large. (15)

This Article also adds a novel empirical element to the scholarly literature on patent law and gender. Previously, scholars have offered feminist critiques of patent law doctrines (16) and eligibility requirements for the patent bar, (17) analyzed how patent law has been applied to technologies with a unique salience for women, (18) and interrogated the theoretical foundations of intellectual property law more generally from a feminist perspective. (19) The lack of women inventors named on issued patents also has been documented; a recent study by the U.S. Patent and Trademark Office ("PTO") found that only 12% of named inventors were women. (20) The report noted that the gender gap among inventors has persisted despite increasing participation of women in science and engineering. (21)

This Article, by focusing on gender representation in the practice of patent law, makes clear how much work remains to be done to create an inclusive patent bar and legal profession more broadly. On the patent side, we highlight reforms that law firms, their clients, and the courts have begun to undertake to increase gender parity. (22) For example, many large corporations now insist that their law firms staff matters with a diverse team of lawyers. (23) Nevertheless, as our data indicate, it is usually male senior partners who stand up in court when it matters most. Courts and judges, however, can provide incentives for inclusion. Several federal judges, as well as the Patent Trial and Appeal Board at the PTO (an increasingly important forum for patent litigation (24) ), have made it a regular practice to offer parties additional argument time if they choose a lawyer with little experience to take the lead. (25) Whether opportunities for inexperienced lawyers will translate to additional argument time for women remains to be seen. To that end, courts and judges could offer--and a few already have offered (26)--additional argument time to parties represented by women lawyers and lawyers of color.

Yet an "add diversity and stir" approach has significant limits, (27) particularly when it comes to changing behavior in places, such as at leading law firms, where sexist and racist norms are, consciously or not, deeply embedded. (28) Perhaps the data reported in this Article will persuade some privileged and powerful lawyers to relinquish some argument opportunities they disproportionately enjoy in the current system. But without fundamental changes to law firm governance and lawyer compensation--as well as deeper changes in the culture of corporate workplaces and public and private support for dependent care--the appellate patent bar may continue to look like it does today: a domain almost exclusively populated by men. (29)

The remainder of this Article proceeds as follows. Part I provides historical background on women's participation in the patent system and discusses the role of gender in patent doctrine and the practice of patent law. Part II describes the methodology of the Article's empirical study. Part III presents the study's results in detail and discusses its implications. Finally, Part IV highlights strategies for making the patent bar more diverse and the practice of patent law more inclusive before discussing some limitations of those strategies and our study.

This part of the Article situates our empirical study of gender inequality in patent litigation within the scholarly literature on gender and patents. It begins by discussing existing data on gender inequality in the practice of patent law and then explores prior analyses of gender and patent doctrine.

A. Women's Representation in Patent Practice

Over half of law students today are women; (30) that number has been over 40% since the mid-1980s. (31) Yet equal representation of women among law students has not meant equal representation of women in law practice, particularly at private law firms. Though women comprise nearly half of all associates in private law practice (and over half of all summer associates), (32) only about 38% of attorneys at the largest U.S. law firms are women. (33) And the higher up in the hierarchy you go, the fewer women you find. Less than 20% of law firm equity partners are women. (34) Women of color are even more absent: they comprise only 3% of equity partners and 9% of law firm attorneys overall. (35) In a recent survey of 200 large law firms, the National Association for Women Lawyers found that the most highly compensated attorney at 93% of those firms was a man. (36)

Elite appellate litigation is an area of law practice where gender inequality is particularly noticeable. In the U.S. Supreme Court's 2019 Term, women presented oral argument only 13% of the time (20 out of 156 arguments). (37) As we discuss in more detail below, in any given Term, the percentage of women presenting argument has rarely nudged above 20%. (38) Empirical studies suggest that the Justices do not allow women advocates to speak before the Court as often as male advocates and that women advocates face more negative comments from the bench. (39) Likewise, the male Justices themselves tend to speak more freely and at greater length than the female Justices. (40)

Notably, women tend to be better represented in legal work on behalf of the government as compared to the private sector. Among lawyers roughly a decade into their careers, 41% of men are in private practice at law firms, compared to 34% of women. (41) But those numbers flip in government practice: 20% of women a decade into their legal careers work in government, compared to 16% of men. (42) Women's more frequent representation tends to hold at higher levels of government, too. For example, one-third of judges on the federal courts of appeals are women, including five of the twelve active judges on the Federal Circuit. (43) Across all lower federal courts, 34.5% of active judges are women. (44) And the Office of the Solicitor General, which represents the federal government in litigation at the Supreme Court, has had a roughly equal balance of male and female lawyers in recent years. (45)

In intellectual property and patent law, gender disparities are particularly stark. According to the American Intellectual Property Law Association, women comprise only 30% of intellectual property attorneys at law firms. (46) A recent survey of 107 trials in intellectual property cases found that 76% of lead attorneys were male and 74% of partners on those trials were male. (47) The racial disparities were also stark: 87% of the lead attorneys were white, as were 80% of the partners. (48)

Numerous women working in patent litigation in the late 1990s reported never appearing against or working with another female attorney. (49) Even today, only about 17% of registered patent attorneys and 20% of patent agents (that is, lawyers and nonlawyers, respectively, who are admitted to practice at the PTO) are women. (50) A 2019 report on Women at the Patent Trial and Appeal Board found that women made up only 10% of total attorney appearances in the new post-issuance proceedings that began operating in 2013. (51) That study also found that, of the 100 attorneys who had appeared in the most Patent Trial and Appeal Board ("PTAB") proceedings, only six were women. (52) In short, "the descriptive empirics of gender in the patent system are relatively straightforward: women are at every level pervasively absent." (53)

Yet the absence of women is more striking in some areas of patent practice than in others. In patent law, like in law practice more generally, women are better represented in government than at law firms. Though only 10% of lawyers appearing at the PTAB are women, over 30% of the PTAB's judges are women. (54) Similarly, less than 20% of lawyers registered to practice at the PTO are women, but nearly 30% of patent examiners (the PTO employees who review patent applications) are women. (55) And, as discussed below, about half of the lawyers at the PTO's Solicitor's Office, which represents the PTO in litigation at the Federal Circuit, are women. (56)

B. Gender Bias in Patent Law

This section engages prior scholarship on gender bias in patent law and situates the study of patents and gender, including this Article's study of gender inequality in patent litigation, within broader feminist theorizing.

Starting with basic patent doctrine, critics have noted that the subject matter eligible for patents (57) leans heavily toward mechanical and technological inventions; social and communicative innovations, which are viewed as typically associated with so-called feminine values, tend to be excluded. (58) The test for patent-eligible subject matter, (59) commentators have observed, is "based on inherently androcentric definitions of 'invention,' 'technology,' and 'industrial application,'" which, they suggest, may exclude inventions that contradict those androcentric foundations. (60)

Consider also "Winslow's tableau," a classic judicial description of the framework for analyzing the nonobviousness (61) of an invention under [section] 103 of the Patent Act: "[P]icture the inventor as working in his shop with the prior art references--which he is presumed to know--hanging on the walls around him." (62) Not only does the test itself presume that the inventor is a man, it emphasizes individualistic and competitive means of generating knowledge, which, critics have suggested, may devalue the collaborative efforts of teams of innovators, where women may be better represented. (63)

In addition, various doctrines of patent law, including the nonobviousness requirement for patent validity and important questions about patent scope, (64) are applied from the hypothetical, purportedly objective perspective of a "person having ordinary skill in the art" ("PHOSITA"). But this objective standard may not reflect the diversity of the inventive community and the varied and cumulative influences that can lead to innovation. (65) More generally, as Kara Swanson has shown, even doctrines of intellectual property law that appear neutral on their face--for instance, the person of ordinary skill in the art--often assume a male perspective in practice. (66) Swanson observes: "[W]hen it comes to women's ways of creating or knowing--food or fashion in copyright, or tending sick cats as the basis for invention in patents--the expansive doctrines of intellectual property subject matter suddenly narrow, and the definition of authorship and invention are revealed to assume masculinity." (67)

Observations about the gender bias of objective standards like the PHOSITA build on longstanding feminist criticisms of "reasonableness" standards, such as tort law's reasonably prudent person. (68) That "reasonable person" standard was derived from the "reasonable man" test, under which courts historically relied on masculine metaphors and reflected the experiences of men. (69) The "reasonable" aspect of that standard has likewise been tethered to values stereotypically identified with men. As Naomi Cahn explains, "[a] reasonable person may resemble a reasonable man.... Existing conceptions of reasonableness are gendered through their creation of a standard of conduct based on rationality, exclusive of emotions and morality." (70) Scholars have called for conceptions of law that do not cater to the presumed neutrality and dispassion that rationality implies. (71) Cahn joins other feminist legal theorists who note the ways in which the autonomous individualism of reasonableness precludes collective responsibility. (72) These scholars call for a reimagined liability standard that queries "whether a defendant exhibited responsible care or concern for another's safety, welfare, or health, akin to that demonstrated by a responsible neighbor or a social acquaintance." (73)

Applying a feminist critique to patent law, scholars have suggested relaxing the PHOSITA's presumed omniscience about all preexisting technology, reforming patent validity doctrines to recognize the cumulative nature of invention, and placing a greater focus on the responsibilities that stem from a patent grant rather than treating the patent as simply a right to exclude. (74) That is not to argue that collaboration, empathy, or collective responsibility are exclusively the domain of women. Indeed, there are real costs and unintended consequences in essentializing the experiences of women as noncompetitive, collaborative, collective-oriented, or emotive. (75) Rather, it is to point out that scholarship on gender bias in patent law is in conversation with feminist theorizing that identifies the social values marginalized by traditional legal doctrines. (76)

Those values not only inform critique of patent law doctrines, they also help contextualize the gender disparities in patent law practice discussed above and reflected in the empirical study presented below. Despite a proliferation of laws and policies prohibiting discrimination over the past several decades, women are still underrepresented at the highest levels in many white-collar professions. (77) Recent scholarship on how and why women succeed or fail in corporate contexts emphasizes not only that corporate employers regularly treat men and women differently (by, for example, disproportionately assigning women time-consuming administrative tasks), (78) but also that corporate culture sets up women to fail.' (9) As this literature notes, big business is characterized by a winner-takes-all mentality, fueled by compensation systems that tie financial rewards to around-the-clock availability. (80) Corporate culture defined by those characteristics thrives on what have been called "masculinity contests": the "valoriz[ation of] masculine traits like competition, risk-taking, and win-at-all-cost mentalities." (81) Just as patent law doctrines embed gendered conceptions of discovery and innovation tied to individualism and exclusion, corporate culture--including, arguably, the culture of private law practice--has propagated gender inequality by rewarding competition and self-promotion and by facilitating the emergence of small, insular networks of powerbrokers who reap outsized financial and reputational rewards. (82)