A numbers game: D&I targets and the IP profession

If the legal profession suffers from a lack of diversity, then the IP corner of the business fares even worse.

According to a  survey of UK registered patent and trademark attorneys carried out by IPReg in 2021, the IP industry is  55% male, 87% heterosexual and nearly 80% white.

The picture is similar in the US. Women comprise under 22% of US Patent and Trademark Office (USPTO)-registered attorneys and agents, and USPTO registration for racially diverse registrants averages about 6.5%, according to  research by Elaine Spector and LaTia Brand in an article for the American Bar Association.

A long-term mission

Clearly, there is work to be done.

Among the many initiatives being devised and implemented by law firms and legal departments, the setting of targets and quotas has emerged as a popular weapon in the arsenal of those looking to diversify the IP profession.

WIPR’s 2022 global survey of IP professionals found that nearly 30% had D&I targets and/or quotas in place, with most (nearly 90%) of those being for gender diversity, nearly 65% for race/ethnicity, followed by 36% for sexual orientation and 31% for disability.

Most (nearly 74%) rated the effectiveness of targets and/or quotas at five or more out of ten. But nearly a third (26%) remained underwhelmed by their effectiveness, rating them at four or below.

In the wider profession, targets can be a way of focusing the mind on D&I, for example among brands looking for ways to mandate change among their law firm suppliers.

The Mansfield Rule

Lisa Kirby led the creation of Diversity Lab’s Mansfield Rule, an initiative to improve diversity in legal leadership. It takes a target- and data-driven approach, and Mansfield certified organisations (more than 270 US and Canadian law firms, 15 UK law firms, and 75 legal departments) require slates for leadership roles and supporting activities to consider 30-50% underrepresented talent.

The Mansfield Rule came about in response to a general lack of data and metrics in D&I efforts, Kirby explains.

“I think it’s important not just to have metrics, but that they’re transparent. So if you’re not sharing your metrics, then it’s the same as not having them,” she says.

Kirby doesn’t put it entirely down to the Mansfield Rule, but she has seen a shift from law firms’ resistance to tracking demographics for fear they could be used in litigation, to an increasing number of firms tracking diversity at some level.

“It’s nice to think that the Mansfield Rule probably did bring that about in some way. It definitely played a role. I think it’s caught on. A lot of the firms that join the Mansfield Rule each year, with each new iteration, say that they haven’t really tracked before, or not to the same extent.”

Tracking data and metrics is not the same as setting a target, of course. But Kirby believes that considering the 30-50% target is key to driving success.

“It’s just nice to have a metric to centre everything around. That grounds everyone, and it adds a layer of discipline and organises everything really nicely, rather than just talking about diversity and inclusion in general with no real way of telling what is successful or not successful. A lot of firms have said that that has changed their conversations drastically,” she says.

“Targets alone won’t change the talent pipeline, because they cannot provide the opportunities that are needed to help people advance.” Erika Arner

Unrealistic expectations

But not all are convinced of the merits of a strict targets-based approach. Casimir Jones is a Wisconsin-based life science IP boutique. During an interview with WIPR group editor Tom Phillips at the  Diversity in IP Conference in late 2021, attorney Lisa Mueller explained that firms like hers have been subject to clients’ expectations that they actively recruit and develop people from underrepresented groups.

For Mueller at Casimir Jones, strict target-based D&I requirements can sometimes seem unbalanced.

“What we’ve noticed is our clients are taking a one-size-fits-all approach to this issue. They seem to be focused on requiring their outside counsel to meet these certain diversity quotas or metrics, regardless of whether or not those expectations are realistic and the firm’s size,” Mueller said during the session.

In her view, the response from clients can be inflexible: “What they tell us is they understand the problem, they see it, but still their upper management tells them that we have to meet these requirements.”

Although many clients don’t set timeframes and see such discussions as a gentle nudge, she explained, some set goals that diversity improvements will be made, say, in the next three-to-five years, or there will be penalties—such as reducing the work sent to the firm, or phasing the firm out entirely.

But with a systemic lack of diversity in IP—exacerbated by the requirement for a scientific background at degree level, coupled with societal discrimination and, in the US, a hugely expensive education system—the lack of diversity in IP is a complex issue.

For Erika Arner, patent litigator and managing partner of law firm Finnegan, the issue is a long-term problem that can’t be easily addressed by targets alone.

“Targets alone won’t change the talent pipeline, because they cannot provide the opportunities that are needed to help people advance,” she says.

“I think that just focusing on a target carries the risk that people will think they’ve fixed things when they get to a certain number. When you think about the issues that need to be addressed, they run through the whole legal system.

“And there are also pipeline issues that take years and years and years to develop. So it is a long-term challenge.”

Artificial success?

In the UK, Gordon Harris, treasurer of IP Inclusive, which aims to promote equality, diversity, inclusion and wellbeing in the UK’s IP sector, is sceptical about targets in general, though he believes that monitoring outcomes and progress is important.

“I worry that such an approach may be at the expense of behaviour. When you say to firms:  we want you to set targets, they will then find artificial ways of meeting them,” says Harris.

That might mean, for example, meeting a target of 33% female partners by loading up the salaried partner ranks, rather than seeing women equity partners at the top of the decision-making tree, or focusing on the target rather than creating an environment that naturally delivers change.

“You could see situations where they will say, ‘Oh, crikey, this year, we must make only women partners up.’ That’s not a good decision. That’s not going to achieve anything. It’ll create a lot of resentment, and a bad working environment,” he adds.

A better culture

Harris cautions against seeing a target outside the context of the organisation’s broader effort.

“I would suggest: why don’t you instead ask us what our policies are? Why don’t you ask us how we’re going about this and how we’re addressing it?  Because it might be that by adopting a slightly longer-term approach, we are going to develop a better culture in the longer run, which will cement diversity into the organisation rather than creating it artificially on an ephemeral basis that could easily slip away,” he says.

And an overly ambitious approach can sometimes backfire. Last year, Coca-Cola was forced to pour water on its ambitious D&I policy, formally renouncing the D&I proposals unveiled by its former general counsel Bradley Gayton.

According to the proposal, the beverage company’s external counsel was required to staff matters relating to Coca-Cola so that diverse attorneys performed at least 30% of all hours billed, with Black attorneys performing “at least half of that amount”.

Gayton announced that Coca-Cola would withhold a non-refundable 30% of fees from law firms that failed to meet its new requirements, as he criticised the legal sector for not viewing D&I as a business imperative.

Critics of Gayton’s proposals had suggested that such policies contravened Title VII of the Civil Rights Act of 1964, which holds that employers can’t treat people differently based on their race.

In April 2021, Gayton left as Coca Cola’s GC and was replaced by Monica Douglas, prompting the beverage company to stall its D&I plan.

In a letter sent to external counsel in February 2022, Douglas confirmed that Gayton’s policies “are not now and never have been company policy”.