Analysis

The Female Inventor Problem And How Lawyers Are Helping

Law360 (August 6, 2019, 5:57 PM EDT) -- Going through the patenting process can be intimidating for new inventors, but Jayshree Seth feels fortunate that when she started out at 3M Co. more than two decades ago, she worked with an in-house patent attorney who immediately put her at ease.

“He would say things like, ‘Thank you for inventing, Jayshree,’” said Seth, a corporate scientist at the industrial giant. “It’s a subtle thing, but it was an amazing feeling that I had such support. His encouragement early in my career of the value I brought by inventing set me up for success.”

Seth has indeed enjoyed success over the last 26 years at the company. She’s the first female engineer at 3M to rise to the level of corporate scientist, the highest technical tier, and she is named on 65 patents that include diaper closure systems and other types of adhesives, tapes and fasteners. She’s also become more familiar with the nuances of patenting thanks to many discussions with in-house attorneys.

“I think inventing can be daunting for people if they don’t have the right environment,” she said. “I lucked out with the 3M culture, which empowers you to collaborate with others in the technical community. The support from my own organization, my collaborators and the [intellectual property] attorneys helped me shine.”

However, the pursuit of patents largely remains a male-dominated venture. Based on a February report by the U.S. Patent and Trademark Office, the percentage of patents listing at least one female inventor climbed from about 7% in in the 1980s to 21% in 2016, but women accounted for only 12% of all inventors on granted patents in 2016, the most recent year data is available.

The low representation of female inventors has been attributed in part to the smaller share of women seeking careers in the science and engineering fields, which generate the most patentable inventions. But the USPTO found that even as women are working in science and engineering jobs at higher rates, it’s not leading to extensive increases in women obtaining patents.

The sluggish growth suggests there are biases hampering women from seeking and earning patents, a problem that hinders economic growth in the U.S. and is inspiring some lawyers, companies and others to take action, sources say.

“Innovation can come from a wide variety of sources,” said Eldora Ellison, a director at Sterne Kessler Goldstein & Fox PLLC. “If we’re not tapping into the innovative and creative contributions that people across the spectrum can make, we are going to be missing out.”

Looking to Make a Change

There are plenty of reasons why women aren’t inventing at the same pace as men. Women aren’t pursuing science, technology, engineering and math degrees at the same level as men, nor are many staying in these fields long enough to become inventors. Also, companies aren’t necessarily mindful of who they’re staffing on projects that could lead to inventions, they aren’t always clear about how the invention and patenting process works, and company employees in charge of reviewing potential inventions aren’t usually diverse.

And it doesn’t help that some women are too focused on having the “perfect” idea and aren’t comfortable in a role requiring some self-promotion.

Mercedes Meyer, a Drinker Biddle & Reath LLP partner, noticed that most companies seem to be having problems promoting a diverse inventor community because of their own implicit biases, and she set out a few years ago to try to change that.

“Every company wants to improve diversity, but no one explains the how — how to keep the pipeline diversity rich, how to keep women in and engaged and not lose them along the way,” said Meyer, who also is vice chair of the women in IP law committee at the Intellectual Property Owners Association, or IPO.

Meyer teamed up with the technology transfer professionals nonprofit, AUTM, and IPO member companies — like 3M, IBM Corp., General Electric Co., Google LLC, Microsoft Corp. and Intellectual Ventures Management LLC — to develop a toolkit of best practices and resources for boosting the diversity of inventors. The toolkit, which IPO plans to unveil at its annual meeting on Sept. 26, seeks to help companies learn about their implicit biases, identify the root causes, and create programs to encourage a more inclusive inventor community.

Some of these best practices involve educating researchers how to access the patent process, showing samples of submitted invention disclosures that became significant inventions, recognizing diverse inventors, and setting rules during brainstorming sessions that require everyone at the table to contribute. They also include creating affinity programs like female engineering groups or LGBTQ software groups that create a space to raise questions and hash out ideas in a comfortable setting and engaging in community outreach through STEM programs.

Some companies have committed resources to diversifying inventors as part of a broader push to accelerate the advancement of women at all levels. For example, from 2011 to 2016, 3M boosted women’s representation at the vice president level and above from 16.7% to 24.2% and for those leading 3M subsidiaries from 2.4% to 22.7%, according to Sandra Nowak, assistant chief IP counsel at 3M’s innovative properties subsidiary.

The USPTO, which is collaborating with IPO on the toolkit, is also working with the Small Business Administration to review ways to make entrepreneurship activities and the patent system more accessible to women, minorities and veterans after the Study of Underrepresented Classes Chasing Engineering and Science Success Act, or the SUCCESS Act, was signed in October. The USPTO, along with the U.S. Department of Commerce and other agencies, is considering possible data sharing on patents applied for and obtained by these groups.

“Broadening the innovation ecosphere to include women — and other underrepresented groups — is critical to inspiring novel inventions, driving economic growth, and maintaining America’s global competitiveness,” USPTO Director Andrei Iancu testified in May before a U.S. House subcommittee.

Another law may be on the horizon. Seeking to help close the gap in patents granted to women and underrepresented groups, a group of lawmakers in July proposed a bill that would enable the USPTO to collect more information about applicants, including their gender, ethnicity, income, sexual orientation and veteran status.

Why Diversity Matters

Teams with a mix of inventors are important for developing a range of creations that can improve the lives of everyone, not just one group.

“Males and females think differently,” said Stephanie Scruggs, a partner at Bradley Arant Boult Cummings LLP. “The more diverse inventor community you have, the more expansive the technological advancements you can get from that diversity.”

Having a majority of male inventors can have serious — and even fatal — consequences for women. When seat belts and airbags were first being tested, researchers used crash test dummies built like the average male body, overlooking how their construction might work differently for female frames, according to Jessica Milli, study director at the Institute for Women’s Policy Research. As a result, there was a higher rate of fatalities for women when those devices were first used.

“To some extent, having more women on those teams would have helped avoid those problems,” Milli said. “If women were on those teams, you could see them bringing up, ‘Hey, this [seat belt] isn’t sitting quite right on my chest. It could be a problem.’”

Another example has to do with body armor used by police and military forces that is designed solely for male bodies. When women wear ill-fitting armor, it can hinder their ability to move, cause physical problems and put them in greater danger on the job, Milli said.

“When we don’t have diversity in our innovation ecosystem, we are ignoring problems that could be solved,” she said. “If a group of white men are tackling all the issues and finding innovations to solve them, they are probably not thinking of the challenges that are specific to women, people of color and other backgrounds.”

Most of the patents that have been obtained by women have been in more gender stereotypical categories, like baking and baby products and apparel, according to sources.

But women are starting to make strides in other sectors.

According to the USPTO report, women made up about 18% of inventors on chemistry patents from 2007 to 2016, three times the percentage rate from the previous decade. Within subcategories of chemistry, female inventor rates were even higher in 2016, with women accounting for 25% of all inventors granted patents in biotechnology and 23% in pharmaceuticals.

Life sciences have been drawing more women, and the rise in female inventors in the chemistry field is likely driven by the growing number of women involved in research and development in the field, attorneys told Law360. The USPTO report notes that female inventor rates are higher in areas, such as chemistry, where teamwork is especially important. The report also points out that instead of breaking into male-dominated fields like engineering, women seem inclined to specialize in areas where female predecessors have cleared a path.

The chemistry field has a number of prominent female patent holders, including Stephanie Kwolek, the late DuPont inventor of Kevlar, a synthetic fiber used in body armor.

“There have been some well-known female trailblazers … that may have inspired younger females to pursue a career in this area, which then leads to a larger concentration of female professors and role models in these disciplines,” Scruggs said.

While women may not be dominating engineering fields yet, some leaders are emerging, like IBM’s Lisa Seacat DeLuca.

DeLuca began working as an engineer at IBM in 2005. She came up with her first patent, a method to stylize code, a few months after joining, and has since filed 650 patents, establishing DeLuca as the most prolific female inventor at the company. Her early patents centered on GPS and smartphone technology solutions, while her more recent patents cover “digital twin” technology that creates digital representations of physical objects.

DeLuca is on a personal mission to surpass renowned inventor Thomas Edison in patents. Edison amassed 1,093 U.S. patents over his lifetime.

“There is no reason [inventing] is something only men should be doing,” she said. “It’s really about trying something and seeing what happens. If it doesn’t work, try again.”

What Lawyers Can Do

The small percentage of female inventors may seem like a pipeline issue best addressed by schools and universities, but in-house IP lawyers and outside counsel have a role to play here, too.

Exposing students to the value of IP is a good place to start. Lawyers can reach out to student entrepreneurship groups and educate them about the different kinds of IP and career options. This might not only encourage more female inventors, but female IP attorneys as well.

“As more females get involved — and stay involved — in STEM-related careers and fields that typically lead to patentable inventions, we should see an increase in both the number of female inventors and female patent attorneys,” Scruggs said.

Lawyers can assist new inventors by demystifying the patent process. If they also can help find funding sources for obtaining patent protection, all the better.

“Simple things like being clear about the invention submission process and working with new or diverse inventors so that they understand the process and when to submit an invention for patenting can help diverse inventors feel connected and supported,” Nowak said. “A little bit of support and mentorship can go a long way.”

While inventorship decisions are based on the claims filed in the patent application, lawyers can creatively draft claims, particularly dependent claims, to ensure inclusion on a patent of all team members, according to Nowak.

“This practice not only demonstrates inclusion in a tangible way that has long-lasting impact on a team, but it can also result in a broader, stronger patent that better protects the inventions,” she said.

In-house attorneys should dig into a company’s statistics on how many inventors, scientists and repeat inventors it has, whether it has diverse role models and whether the invention submission process is accessible to all.

And since many small and midsized clients may not have a diversity and inclusion officer, outside counsel can step in and work with clients on identifying barriers that might be limiting their pool of inventors. While companies are learning more about diversity, they still need help with practical applications, where bottlenecks can occur, and how to modify processes and behavior to foster a more inclusive environment, according to Meyer.

“If you can make your business run better, have a bigger bottom line or help a client identify a problem they weren’t even aware of, why wouldn’t you as a lawyer raise the issue?” Meyer said.

--Editing by Jocelyn Allison, Pamela Wilkinson and Rebecca Flanagan.

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