D&I update: Biden's Fed Circ pick could make history
Read more to find out about how IP litigator Tiffany Cunningham could make history by becoming the first woman of colour to be appointed to the judiciary of a US appeals court, the progress of transgender rights, and why practitioners believe the US patent bar needs an overhaul.
Biden nominee expected to become Fed Circ’s first black judge
On March 30, President Joe Biden announced his decision to nominate Perkins Coie IP litigator Tiffany Cunningham to the US Court of Appeals for the Federal Circuit, potentially making her the court’s first black judge in its nearly 40-year history.
The Federal Circuit is the only US federal appeals court to never appoint a black judge. If Cunningham is confirmed by the US Senate, her appointment would also create an even six-to-six split between male and female Federal Circuit judges.
Cunningham graduated from Harvard Law School and earned a BSc degree in chemical engineering from the Massachusetts Institute of Technology, which would make her one of the few judges on the Federal Circuit with a technical degree.
Before joining Perkins, Cunningham worked at Kirkland & Ellis, where she was part of a team representing BlackBerry that succeeded in reversing a nearly $150 million jury verdict against the tech company in a patent suit.
Speaking to WIPR, her former colleague, Kirkland & Ellis partner Ellisen Turner, said: “Judicial appointments represent long-term, fundamental structural changes that have a modelling effect for generations to come. Tiffany Cunningham is an amazing lawyer, and I expect she will be appointed with broad support. That is going to have a ripple effect for generations of young black women.”
Transgender rights: ‘I hope we can get more acceptance’
International Transgender Visibility Day on March 31 is dedicated to celebrating transgender people and raising awareness of discrimination faced by transgender people worldwide, as well as a celebration of their contributions to society.
To mark the event, campaigners and advocates for the lesbian, gay, bisexual and transgender (LGBT) community told WIPR about how IP establish environments where transgender, gender fluid and non-binary people can thrive and progress professionally.
According to DJ Healey, senior principal at Fish & Richardson and a member of the transgender community, the ‘t” in LGBT must not be forgotten by the IP community.
“I hope we can get more acceptance, and this comes from familiarity. Inclusion comes from integration. Trans people are in a really odd situation because we are such a small minority,” she said.
There are issues faced by transgender attorneys that are not faced by gay and lesbian attorneys, such as access to health care, pointed out Linda Thayer, partner at Finnegan and an advocate for LGBT rights.
“Not all health plans cover health services for gender transition drugs or surgeries, while solo practitioners may face higher premiums or discrimination in getting private insurance. There is also a patchwork of state laws and regulations, such as bathroom bills, which require people to use the bathroom of the sex which one was assigned at birth. This may make life more difficult for transgender, non-binary and gender-fluid IP lawyers, even if their employers are welcoming.”
According to Charlotte Suttle, senior workplace programmes manager at Stonewall, it’s high time the legal sector became more inclusive of transgender people.
“From our work with legal firms we know trans and gender diverse legal professionals are under-represented throughout the sector, particularly in senior roles.
“This is unacceptable and highlights the challenges that many trans, non-binary and gender-fluid legal professionals face,” she said.
While change is possible, it’s crucial that employers take a zero-tolerance approach to transphobia, she noted. She adds that organisations can also create a more welcoming environment for trans and gender-diverse staff by updating their systems to offer gender-neutral pronouns like ‘Mx’ on titles and ensuring that workplaces include gender-neutral facilities.
“The legal sector plays an important role in representing every member of our society so it’s essential that the profession is as diverse as the people they serve,” she said.
There are very few transgender, non-binary and gender-fluid people working in the IP sector, and even fewer who are prominently visible, echoed Darren Smyth, partner of EIP and a proud member of the LGBT community.
“The challenge for the profession which has such low levels of trans inclusion is to ensure that transgender, non-binary and gender-fluid people are indeed welcome in our sector, and to communicate that effectively to those thinking of joining,” he said.
“It can be daunting to join an organisation as the first person with a particular identity, and the challenge of educating the organisation and navigating the issues can fall disproportionately on the new entrant, which is clearly inequitable.”
Noted Thayer: “The IP field may be smaller than others, but we work with the companies on the leading edge of most industries. We can and should take steps to be on the leading edge of welcoming transgender, non-binary and gender-fluid IP lawyers as well.”
USPTO seeks views on patent bar qualifications
Amid mounting concerns about the gender gap in the patent field, the US Patent and Trademark Office (USPTO) is carrying out a review of its requirements to sit the patent bar exam.
On March 23, the office issued a request for comments seeking public input on proposed administrative updates to the General Requirements Bulletin for Admission to the Examination for Registration to Practice in Patent Cases.
A day earlier, Senators Thom Tillis and Tom Cotton issued a letter to the acting Director of the USPTO, Drew Hirshfeld, encouraging the introduction of a pilot programme aimed at revamping the current process of selecting candidates for the patent bar.
Critics say the time for a reappraisal is overdue and that the criteria for eligibility to sit the patent bar exam has long been an unfair barrier to women and minorities.
According to his study Gender Diversity in the Patent Bar, Saurabh Vishnubhakat, a professor at Texas A&M University, found that only 18.12% of patent practitioners were women.
In her 2020 paper “ The Patent Bar Gender Gap: Expanding the Eligibility Requirements to Foster Inclusion and Innovation in the US Patent System," Mary Hannon, patent agent at Marshall, Gerstein & Boren has argued for an overhaul of the qualifications process.
“The key issues are that the existing criteria are overly exclusive and internally inconsistent,” she told WIPR. “While the USPTO has a reasonable basis for requiring some technical expertise, the current system results in the exclusion of qualified women from the practice. Changing the criteria to be more inclusive makes sense for all parties, and does not degrade the standards or quality of the patent bar.”
The gender gap in patenting needs to be addressed and tackled from all angles, according to Hannon. “Changing the patent bar requirements is not going to move the needle or solve the gender gap overnight. But these changes are both within the USPTO's direct control and can be done to provide a first step toward meaningful change without compromising any quality in patenting or service to patentees.”
Elite law firms unveil gender and ethnicity pay gap figures
In March, leading UK law firms revealed their latest gender and ethnicity pay gap figures, which showed that for the majority, progress in 2020 had failed to significantly build on the previous year’s results.
But according to a Freshfields Bruckhaus Deringer report, female employees now earn more than male staff on average, making it one of the very few City law firms to achieve this milestone.
The firm’s 2020 pay gap report shows that its mean gender pay gap for employees reduced year-on-year from 3.8% (in favour of men) to -1.1% (in favour of women).
The firm’s overall gender pay gap, including employees and partners also dropped, from 57.2% in 2019 to 54.5% in 2020. For partners, the mean gender pay gap dropped from more than 10% to 2.4%.
Freshfields reported an overall ethnicity pay gap of 59.5%, from 66.4% in 2019. Slightly more that one in five UK partners and employees identified as being from black, Asian, or minority ethnic backgrounds. The firm aims to double the number of black associates by 2026, and has pledged that women will occupy at least 40% of leadership roles by 2023.
Clifford Chance‘s overall gender pay gap narrowed slightly, from 65.7% to 63.5%, but its partner gender pay gap slumped to 25.7%, a drop of nearly 2% compared to 2019. The gender pay gap among associates is 5.5%. The firm’s ethnicity and LGBT pay gaps, including partners, are 47.5% and 24.7% respectively.
Hogan Lovells revealed an overall gender pay gap of 56%, compared to 57.8% in 2019. The firm’s ethnicity pay gap sits at 9.5%.
Irwin Mitchell recorded a 1.2% reduction in its gender pay gap, from 10.3% to 9.1%. For the second year running, the firm also published its mean ethnicity pay gap. This widened by 5.9%, from -2.3% in 2019 to -8.2% in 2020, in favour of ethnic minority colleagues.
Linklaters has increased its diversity targets after narrowly missing its gender targets over the past six years. In 2014, the practice pledged that 30% of partner promotions would go to women. But this fell short by 2%. Earlier this year, the firm reported a 20.7% mean gender pay gap among more than 5,000 employees and an ethnicity pay gap of 10.8%.
This year, the firm also adopted a “black hair code” into its dress code policy to explicitly protect black employees who come to work with natural hair and protective hairstyles.
Two women of colour lead UK Law Society
Lubna Shuja has become the Law Society of England and Wales’ vice president, which means the organisation will have had two consecutive women presidents for the first time in its history when she steps up to the presidential post in 2022.
The appointment was confirmed on March 24.
In October 2021, I. Stephanie Boyce became the first black person and the first from an ethnic minority background to hold the position of president since its foundation of the society almost 200 years ago.
With Shuja’s appointment, it’s also the first time two people of colour hold the top two roles at the solicitors’ body.
Shuja said: “I am thrilled to be elected to this position and I look forward to facing the challenges ahead and working alongside the other office holders and staff. I am proud to be a solicitor and am keenly aware of the issues facing our profession and the public at this exceptionally difficult time.”
In an interview with WIPR, I. Stephanie Boyce said she was committed to making the legal profession more diverse and inclusive by the time she leaves than it was when she entered.
“The statistics bear out and suggest we are working towards becoming a more diverse and inclusive profession and that we should be recruiting people regardless of background,” she said.
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