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22 November 2021Influential Women in IPJoe Matal, Jeff Wolfson and Angela Oliver

Why the patent bar changes will boost gender diversity

In September 2021, the US Patent and Trademark Office (USPTO) announced changes to expand the types of technical qualifications that an applicant must possess to be admitted to the patent bar and allowed to represent patent applicants before the USPTO.

The USPTO’s changes fall into three categories. First, the agency added 14 new qualifying college degrees that automatically entitle an applicant to sit for the patent bar—increasing the number of eligible degrees by nearly half.

Second, the USPTO also allowed master’s and doctoral degrees to qualify—previously only a Bachelor of Science degree was considered sufficient. Third, the agency liberalised the coursework requirements for those relying on technical degrees that do not automatically qualify, adding biology to chemistry and physics as permitted supplemental courses and requiring only one class with a lab component rather than two.

Changing times

The impetus for these changes was a letter to the USPTO that was sent by US Senators Thom Tillis, Chris Coons, and Mazie Hirono that contended that outdated standards were unnecessarily excluding women from the patent bar, as they comprise only 18% of the patent bar.

Their letter prominently cited a 2020 study by then-patent agent and law student Mary Hannon, titled “The Patent Bar Gender Gap: Expanding the Eligibility Requirements to Foster Inclusion and Innovation in the US Patent System”.

This influential paper recommended making several reforms (including all those that the USPTO ultimately adopted) to close the gender gap.

Opening the door

So, will the USPTO’s recent changes open the door to more women entering the patent bar? That’s the expectation.

The USPTO added “biological sciences” as a qualifying degree, a field of study where 55% of all bachelor’s degrees are awarded to women, according to the National Center for Science and Engineering Statistics.

It is expected that the extension of qualifying degrees to graduate degrees will also allow more women to be admitted to the patent bar.

In the field of computer science, women earn only 18% of bachelor’s degrees, but they receive 30% of the master’s degrees.

Similarly, for engineering, women earn 21% of the bachelor’s degrees but 25% of the master’s degrees, and they also earn a larger share of master’s than bachelor’s degrees in the physical sciences.

Adding master’s degrees to the qualifying credentials undoubtedly will expand the “brim of the funnel,” as Hannon puts it, for women seeking to qualify for the patent bar.

Common sense

Aside from their anticipated gender-equity effects, many of the USPTO’s updates and changes also are simply common sense. The agency had previously allowed “biology” to serve as an automatically qualifying degree. Why not “biological science” as well?

Similarly, while “electronics technology” and “textile technology” previously qualified, the update adds “electronics engineering” and “textile engineering”—along with other undisputedly technical degrees, such as aerospace engineering, genetics, materials science, and neuroscience.

Liberalising the coursework requirements for technical degrees that do not automatically qualify is also a beneficial change in general for patent bar applicants.

The difficulty with the previous rigid requirements (two classes with lab requirements in either just chemistry or just physics) is not so much that students were unwilling to meet them; rather, by the time that students realise that they need this to take the patent bar, it is often too late.

Few undergraduates are thinking about admission to the patent bar when planning their course schedules.

But by the time that they are in law school, it is not practical to return to undergraduate school to complete two back-to-back labs.

Greater flexibility in these requirements ensures that fewer students with a technical education will be arbitrarily excluded.

A cautious approach

While the USPTO made many changes to its requirements, it was nonetheless cautious in its approach.

Before it began this process, it undertook a careful review of the types of non-automatic degrees that were routinely deemed sufficient to provide a technical education.

Of the 14 degrees that were added to the automatic-qualification list, 13 were proposed in the agency’s initial request for comments in March 2021. (“Environmental science” was the one degree that was later recommended by commentators and added to the final list.)

But despite pleas from several commenters, the USPTO declined to suspend the requirement that a qualifying computer science program must be accredited by a certifying organisation—which many top schools do not meet.

Presumably, the agency has found that many schools’ “computer science” degrees more closely resemble the training for IT technicians, rendering formal accreditation necessary.

Overall, the USPTO has implemented several helpful reforms to ease the patent bar qualification requirements.

While these changes alone are unlikely to bring the number of women to parity in patent practice—as various other forces also are at work—they remove many arbitrary barriers that unnecessarily excluded women and reflect a more common-sense approach to defining the technical expertise required to practice before the agency.

Joe Matal is a former acting director of the US Patent and Trademark Office and a partner in Haynes Boone’s Washington, DC office. He can be contacted at: Joseph.Matal@HaynesBoone.com.

Jeff Wolfson is chair of the nationwide patent prosecution team at Haynes Boone. He can be contacted at: Jeff.Wolfson@HaynesBoone.com.

Angela Oliver is an associate in Haynes Boone’s Washington, DC office. She can be contacted at: Angela.Oliver@HaynesBoone.com.

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