Senators ask USPTO to close ‘archaic’ patent gender gap

US Senators have suggested that women continue to be excluded from patent bar membership due to systemic bias, and have urged the United States Patent and Trademark Office (USPTO) to review the requirements to sit for the bar exam.

In a letter issued on December 11 to USPTO Director Andrei Iancu, Senators Mazie Hirono, Thom Tillis and Chris Coons, cited a paper written by Mary Hannon, titled, “The Patent Bar Gender Gap: Expanding the Eligibility Requirements to Foster Inclusion and

Innovation in the US Patent System”. In the paper, Hannon, a patent agent with Marshall, Gerstein & Borun, held that qualified women are unnecessarily excluded from membership in the patent bar.

“This was a direct result of the perpetuation of an institutionally biased and archaic set of scientific and technical requirements by the USPTO,” Hannon wrote. “[E]ven when the gender gap within the patent bar has been acknowledged, there have been few, if any, attempts to abolish the systemic obstacles that seem to exclude women from participation.”

The senators wrote: “In today’s increasingly competitive global economy, we must leverage the creativity and talents of all Americans—including women, minorities, and people from low-income and other disadvantaged communities—to maintain the US’ place as the world’s leading innovator.”

They added that while the patent system has long played a critical role in fostering US innovation, the USPTO faces a significant gender gap among named inventors given that a 2020 USPTO report, highlighted that only 12.8% of named patent inventors are women.

“[We] fear that the USPTO’s efforts will be undercut by an apparent gender gap among patent practitioners. While recent data on the demographic make-up of the patent bar is not publicly available, studies from 2013 and 2014 suggest women made up as little as 18% of patent agents and patent attorneys with little growth over time.”

The USPTO requires that all candidates pass a six-hour, 100-question exam in order to practice before the USPTO. However, according to the senators, the exam is not open to all. It is reserved for those who possess certain “scientific” and “technical” qualifications, and the USPTO allows college graduates with degrees in only 32 specific majors to automatically qualify to sit for the exam.

This “list includes an array of majors in engineering and the physical sciences—degrees that disproportionately go to men,” said the letter.

Industrial and fashion design majors ‘excluded’

According to the senators, these stipulations exclude several other majors, such as mathematics, that are highly relevant to modern-day innovation and are earned by women at a rate much closer to their share of overall undergraduate degrees. They pointed out that the USPTO’s list also excludes students who major in industrial and fashion design—fields highly relevant to design patents and for which women make up a majority of students.

In her paper, Hannon also pointed out that the USPTO’s current system was unfair, given that the USPTO allows candidates with undergraduate degrees in computer science to automatically qualify for the patent bar if the degree programme is accredited by the Computer Science Accreditation Commission of the Computing Science  Accreditation Board or the Computing Accreditation Commission of the  Accreditation for Engineering and Technology.

However, the board and commission do not accredit several high-quality computer science courses, automatically disqualifying many potentially excellent candidates, said Hannon.

To address the issue, Hannon has proposed solutions including expanding the types of degrees that satisfy the requirements to qualify for the patent bar, such as eliminating “undue requirements” on programme accreditation and coursework.

The senators concluded: “[We] encourage the USPTO to reevaluate its criteria for qualifying to sit for the patent bar exam to ensure the patent bar is accessible to all qualified candidates. We are confident this can be done in a fair and straightforward manner without jeopardising patent quality.”

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