Patent Office Responds to Senators’ Questions About Representation of Women in the Patent Bar

The Patent Office recently sent a reply to a group of senators asking about the gender diversity of the patent bar, the patent agents and patent attorneys licensed to practice before the Patent Office. The Patent Office’s letter provides some new data confirming the disparity between men and women in the patent bar, while promising to consider some changes to the degree and coursework requirements to sit for the licensing examination for the patent bar.

To become a patent attorney or patent agent, a person must qualify for and pass the patent examination. Sitting for the exam requires a technical background that fits detailed rules promulgated by the Patent Office falling into three categories. Category A, the most common, permits qualification by holding a bachelors degree in a listed major, such as molecular biology or civil engineering. Those with only an advanced degree in a listed subject or a similar but not identically named degree do not qualify under Category A. Category B lists different combinations of semester hours of physics, chemistry, and other subject matters. Category C, rarely used, permits qualification by passing the Fundamentals of Engineering examination.

The senators’ letter expressed concern that these rules disproportionately disqualify or discourage women from joining the patent bar. The letter comes from Senators Mazie Hirono, Thom Tillis, and Chris Coons, a bipartisan group sitting on the Judiciary Committee’s Subcommittee on Intellectual Property. They asked the Patent Office several questions relating to data about, changes to, and evaluations of the qualifications to sit for the exam.

A paper written by law student and recent patent agent Mary Hannon motivated the senators’ letter. Hannon systematically lays out how the qualifications arbitrarily keep out many potential practitioners, especially women. To begin with, the names of majors must match what is listed in Category A exactly—“molecular biology” qualifies but “cellular and molecular biology” doesn’t, “aeronautical engineering” qualifies but “aerospace engineering” doesn’t, and so on. Advanced degrees in the listed majors don’t qualify, and women are better represented among holders of only advanced degrees of the listed majors than of undergraduate degrees. Several categories of technical majors with higher proportions of women are excluded, such as pharmacy and nursing, despite having similar requirements of Category B classes as some majors that are included, like textile engineering and marine technology. Although Category B can be used in some of these situations, it doesn’t fix all of them, and it imposes a significantly higher administrative burden that can discourage potential practitioners.

The letter also references an earlier article by law professor Christopher Buccafusco and Jeanne Curtis about the qualifications for prosecuting design patents before the Patent Office. Design patents differ from utility patents in that they cover ornamental or aesthetic designs instead of scientific or technical inventions and have a scope defined by their figures rather than by verbal claims. Despite these differences, the requirements for prosecuting design patents simply piggyback on the requirements for utility patents—that is, a single license covers prosecuting both types of patents. Majors relevant for design patents, such as industrial design, are not included in Category A, and such degrees don’t require the classes that would qualify someone under Category B. Thus, a person with an electrical engineering degree can prosecute a design patent, but a person with a design degree cannot. This exclusion, again, falls disproportionately on women, who make up the majority of design-related majors.

The Patent Office provided a response, signed by Director Andrei Iancu, the day before he resigned with the change in administrations. The response did provide some hard numbers: in particular, women make up 29% of the patent bar. The proportion of women is larger for Category B, 36%, than for Category A, 28%. The Patent Office further listed “potential changes” under consideration: adding common Category B majors to Category A, accepting advanced degrees under Category A, and loosening how classes can be mixed under Category B. The Office also revealed that it had previously considered and rejected changes for design patents but was willing to reconsider.

Commentary

The suggestions under consideration by the Patent Office represent a good start, but greater changes would better move the needle. First, the Patent Office should consider a greater number of technical majors for inclusion in Category A than just those that frequently arise under Category B. In particular, many majors in the life sciences and medical fields provide the technical background to prosecute pharmaceutical and medical patent applications, but do not entail taking a mix of classes that would satisfy Category B. Given the greater representation of women in those fields, their inclusion could drive greater progress in narrowing the gap.

Second, the Patent Office should reconsider modifying the requirements for prosecuting design patents. It makes little sense that engineers but not designers can prosecute design patents. The Patent Office’s response suggests that “ending [the] common baseline of qualifications may result in fragmentation of the patent bar and decrease the protection of the public from unqualified practitioners.” It’s unclear why the Office believes that “fragmentation” would result in “unqualified practitioners” in this context, given how different design patents are from utility patents.

The attention paid by the senators in their oversight role is a heartening start, and hopefully the Patent Office will soon make progress narrowing this gap in the patent bar.