According to a survey by the American Intellectual Property Law Association, only 1.8 percent of IP attorneys are African American, 2.5 percent are Hispanic or Latino and less than 0.5 percent are Native American. These numbers decrease when you consider just the practice of patent law. The majority of patent law firms will never increase these diversity numbers organically because law schools do not increase diverse patent law students organically. Why, you might ask? Because there are only a limited number of law students that can qualify to be a patent prosecutor. Generally, there is no incentive for law schools to train and develop patent practitioners to the level that law firms expect for graduates. This is further compounded by the fact that minorities have even fewer opportunities to matriculate to law school.
Why isn’t diversity in patent law improving?
Candidly, most minorities have not been afforded access to the same financial and educational opportunities, professional network, generational knowledge and wealth, etc as their non-minority counterparts. Consequently, few minorities are able to obtain an engineering/science degree. Then they are told that they need to go to a “good” law school (i.e., take on more debt) to become a successful patent attorney.
For many minorities, the barrier of entry to the patent law field is simply too high. However, if the number of minority scientists/engineers enrolling in law school is not increasing, how can law firms expect to increase diversity within their respective patent groups? The answer is simple – they can’t. Thus, the end result is a revolving door of law firms seeking to poach diverse talent. However, while a lateral move increases diversity for the acquiring firm, it decreases diversity for the relinquishing firm and leaves the total diverse talent in the industry the same. I don’t fault the law firms for this “robbing Peter to pay Paul mentality”, but it fails to address the pipeline issue.
The traditional path to becoming a patent professional isn’t ideal for minorities.
To be clear, the blame is not squarely on law firms. Rather, I fault the system that has refused to recognize the unique opportunity that patent law presents to the legal profession. With the privilege of being the only area of law where you can practice in a quasi-legal capacity without going to law school, patent law yields advantages that few have tapped into successfully.
So why is it that we are so archaic in our thinking that we still tell people to adopt the status quo and proceed to law school? Noting that technical specialists and patent agents can practice in the profession without going to law school, we should not be solely advocating for law school as the gatekeeper to this profession. Instead, we should be advocating for proper training and the development of scientists/engineers to practice as technical specialists/patent agents as the entry point to this profession. This is true for several reasons:
- Law school does not prepare you to practice as a patent practitioner
- Tuition is expensive, so many law students take on, often insurmountable, debt to learn every subject in the legal sphere except for the one in which they intend to practice.
- Law firms expect law graduates to have experience (that they don’t receive in law school) in order to hire them.
- Minorities’ acceptance rate to law school is lower than that of their non-minority counterparts
- In many cases, the person who achieves the law firm job is not the person best suited for the job. Often one or more of their parents, parent’s parents, or their parent’s parent’s parents were attorneys, so all they had to do was follow the family plan. Meanwhile, as the first-generation engineer/scientist and law graduate in the family, minorities instead struggle to play catch up financially and professionally.
How can we address the real issue?
So again, why do we emphasize law school to minority candidates in the patent profession as the only path into the profession? Why not establish a patent training program geared towards engineers/scientists to help them transition into law firms as technical specialists/patent agents. This lesser-explored path has obvious benefits to all sides including
- The candidate is now making money instead of spending it on law school debt.
- Patent trainees are able to learn on the job at half the salary of a licensed attorney. This increases productivity and decreases expenses for the law firm.
- The candidate gets to understand what it is like to practice before committing to law school and law school debt, only to realize that they don’t like the profession.
- If the candidate does intend to pursue law school, the law firm can help support that transition. By this point, the law firm has paid the candidate a fraction of what they would have paid an attorney for a similar work product. If there is a mutual fit, firms may decide to invest in the candidate and help them attend law school. This will increase the law firm’s minority retention numbers while strengthening the firm’s depth of knowledge. Win-win!
To date, the patent law industry has been bandaging an age-old wound and refusing to address the real issue. In a profession built on novelty and uniqueness, one would think that someone would have found a sustainable way to improve diversity by now. The good news is that someone has! It just so happens that that someone, or group of someones, is Facebook & the National Council on Patent Practicum.
Take our diversity pledge and help fix the pipeline issue, and join us on September 23rd as we work on Building The Patent Pipeline to Diversity.