Navigating the anti-D&I backlash in the US

As the movement against D&I gathers pace, especially in the lone star state, Vera Suarez of Haynes Boone in Texas explains why all is not lost.

The US has seen traction in an anti-diversity and inclusion (D&I) movement, yet there have been notable advances in this space within the IP field.

With respect to the anti-D&I movement, its visibility and strength increased after the Supreme Court’s 2023 decision in Students for Fair Admissions (2023) which held that colleges and universities using an applicant’s race as a factor during the admission process was unconstitutional.

As a result, colleges and universities must find other ways to ensure their student body is diverse.

In the same summer as the Supreme Court’s Students for Fair Admissions decision, Texas passed an anti-D&I law that bans public universities from maintaining D&I offices and from hiring or assigning anyone to perform D&I office duties.

The anti-D&I law even prohibits asking for a D&I statement from any person and prohibits any D&I training that is mandatory. 

Moreover, the anti-D&I law requires the universities to adopt policies and procedures for disciplining an employee or contractor for violating the law.

Finally, university funding can be frozen until the university submits a report certifying compliance with the law. The law took effect on January 1, 2024, and some universities have already been asked to testify in May 2024 about their progress in abolishing their D&I offices and practices.

Widespread ramifications

Combatting D&I efforts is not limited to public universities.

More recently, and in response to high-profile reports of faulty aircraft manufacturing, Texas’ attorney general opened an investigation into an aircraft parts supplier. Part of this investigation is focused on whether the supplier’s D&I commitments are “compromising the company’s manufacturing process”.

In the investigation notice, the attorney general cites to the supplier’s D&I webpage and demands documents related to the supplier’s public statements describing the benefits of a diverse workforce.

Regardless of the investigation results, the investigation’s focus on D&I is concerning. Lawsuits have also been recently filed in Texas alleging racial discrimination over long-standing diversity practices.

Specifically, a law firm in Texas was sued for alleged racial discrimination due to the law firm offering diversity fellowships to members of historically underrepresented groups. The suit was dismissed after the fellowship was opened to all students.

As a D&I advocate, the anti-D&I movement is concerning. But there are positive D&I developments within the IP field, specifically with respect to diversity of patent practitioners and innovators.

For example, the US Patent and Trademark Office (USPTO) recently announced the launch of a design patent bar, which is expected to increase diversity within the patent bar. Historically, all patent attorneys and patent agents were required to have an undergraduate degree in a hard science such as mechanical engineering, computer science, etc.

More ‘Michaels’ than women inventors

This hard science requirement is reasonable when an invention relates to a complex process or product, and the patent attorney needs to understand how the invention works before drafting a written description of its function. Design patents, however, focus on the look of an object and rely on drawings to describe the invention instead of a written description.

Therefore, the hard science requirement for design patent practitioners is unnecessary. And, at least in the Us, the demographics of hard science graduates is somewhat homogeneous, which has resulted in a homogenous patent bar. A recent review found that there are more patent practitioners named ‘Michael’ than patent practitioners that are racially diverse women.

The recently announced design patent bar will not require a hard science background, and instead, an undergraduate degree in graphic design, applied arts, and other degrees will suffice. Because the demographics of the design graduates and art graduates are more diverse, it follows that the patent bar will become more diverse over time.

Focus on the ‘lost Einsteins’

There is also a new focus in the US to increase inventor diversity and simultaneously prevent ‘lost Einstein’s’—individuals that are inventing without pursuing patent protection.

One of the steps being taken by companies to increase inventor diversity includes adjusting the process of collecting potentially patentable ideas from their employees. The traditional process is geared towards one subset of employees, such as an engineering or research and development group.

The newer process includes companies providing training to all employees on which types of ideas are patentable and how to submit those ideas for review: recognising inventors and invention milestones; highlighting diverse inventors; and providing additional support through the idea submission process.

Making the patent process accessible to a larger number of potential inventors should increase inventor diversity. Moreover, the USPTO has recently created a number of programmes and resources designed to encourage diverse inventors to seek patent protection.

In summary, despite challenges posed by the anti-D&I movement, progress in D&I continues.

Vera Suarez is a patent partner in the Dallas, Texas office of Haynes Boone. She is also co-chair of Haynes Boone’s diversity, equity, and inclusion Committee.