Written by Guest Author, Marks Gray Summer Law Clerk Julianna R. Favale

This year we celebrate the 100th anniversary of the 19th Amendment and acknowledge how far women have come from having to fight for a right to vote. But there are still areas of law that are slow to develop alongside progressive shifts in societal mores. 

Why? Largely because they were shaped by such norms. Intellectual property is one such area of law. 

The field of intellectual property (IP) is one that has generally been recognized as a way to celebrate and reward innovative creators by providing them the legal exclusivity of their creations for a given period of time. 

So it follows that where IP laws fail to properly engage and recognize all subsets of creators, they are failing in their essential purpose. 

Unfortunately, there is mounting evidence showing that IP law has failed to recognize the innovative efforts of women. 

IP and Gender Historically

For much of history, the formal fields from which IP might arise were closed off to women. Fields such as art, engineering, writing, science, music, were dominated by — and often exclusive to — men. This was particularly true in the early days of legal grants in IP.

Even when women were technically allowed to do so, social conventions frowned upon female participation in these male-dominated professions. Thus, IP grew into existence alongside these socially-domineered prohibitions. Likewise, when women did develop inventions or creative works, receiving any social or legal recognition for such works was considered taboo. 

In many cases, the creative works of innovative women were circulated anonymously or pseudonymously to avoid such critiques. 

It has been discovered that female inventors would take out patents in the names of their brothers, fathers, or husbands, as early as the 16th century. 

Here are just a few examples:

• In 1712, Sybilla Masters developed a way to process Indian corn. Her achievements were recorded in a patent document, but any associated rights were issued to her husband since the law at the time prohibited a woman from owning property. 

• In 1818, Mary Shelley published her famous literary work Frankenstein anonymously. Her husband’s name was penned on the preface and he was often credited for the anonymous work.

• In the 1840s, the Brontë sisters penned their novels under male pen names, with Charlotte Brontë noting “authoresses are liable to be looked on with prejudice.”

• In 1859, after 10 years of working with engineers to design naval night-time signaling flares, Martha Coston was only listed as the “administratrix” on her patent; her long-deceased husband was listed as the inventor. 

A Persisting IP Gender Gap 

Today, there are very few explicit deterrents to female inventors and creators in the world of IP. However, there is still evidence of lingering gender bias. 

Women are still conspicuously absent in every aspect of the innovation economy. They are underrepresented as inventors, patent holders, and IP lawyers. Some key points:

• Women are less likely to be granted a patent than men when they apply for one. According to recent data released by the U.S. Patent and Trademark Office (USPTO) for 2019, patent applications include a female inventor only 12.9% of the time in the U.S.

• The study also revealed that, while the number of patents with at least one woman inventor increased from 20.7% to 21.9% between 2016 and 2019, the overall picture is much worse when considering patents where the only inventor is a female or where a group of all women inventors were named. In the last decade, all-female invented patents constituted only about 4% of all issued patents.
   
• A Yale study reviewed 2.7 million U.S. patent applicants and found that, regardless of field, women experienced slower processing times, a higher rejection rate, and the scope of a female innovator’s patent ends up narrower than a filing by a male counterpart.

• This study also revealed disparity among applicants with overtly female sounding names (such as Jane or Rebecca) and those who had a more ambiguous name. Female inventors with the more overtly female names had an 8.2% lower chance of getting their patents approved. If the inventor had the latter, there was only a 2.8% lower chance of granting the woman her patent.

• Even greater disparity was uncovered in regard to citation when it came to female-sounding versus more ambiguous names. Female inventors with female-sounding names were cited 30% less frequently than male inventors.

There are likely any number of reasons for this disparity. But two significant factors may be that women continue to be underrepresented in STEM and innovative fields and as IP law practitioners.

In regards to STEM, although women earn 57% of all four-year degrees, they earn only 35% of STEM Bachelor’s degrees. Moreover, following degree completion, women account for only 22% of the STEM workforce. 

And studies of patent law practitioners show the number of female attorneys and agents to be dramatically lower than male practitioners. According to a Law Review article from the John Marshall School of Law, women on average constitute less than 20% of the patent practitioners registered with the USPTO.

Additionally, an analysis of the American Intellectual Property Law Association’s (“AIPLA”) annual member survey in February 2020 revealed that male copyright, trademark, and patent partners’ compensation at AM Law 200 firms was 53% higher on average than women’s.

More than Just a Statistic  

The gender disparity between men and women in the field of intellectual property is too complex and intractable to be solved just by examining the numerical parities between the two. Such qualitative analytics only outline the parameters of the problem — they are limited in addressing the actual source. 

Detailed survey and interview data indicates that women in STEM and innovative fields are still deterred by social pressures from participating in patenting and commercializing their research. Female engineers and scientists are less likely than their male counterparts to commercialize their inventions, and are less comfortable marketing themselves and their work to potential business partners.

These internalized responses are reinforced by socially structured obstacles. For example, female scientists and engineers are more likely to be excluded from social networks that would promote commercializing their outputs. 

From the other side of the table, there is evidence that essential partners, such as venture capitalists and other financiers, are less likely to take proposals from female innovators seriously when compared to those from their male counterparts. Only 2.7% of all venture capital investment goes into women-led startups, and this number has not changed in years. 

The investment opportunities are there, yet VCs pass them up. Women-led startups are more capital efficient, producing a 35% higher return on investment than companies with homogenous male leadership.  

How Are These Issues Reflected in the Marketplace?

In addition to the lack of women in STEM and innovative fields, there are situations where female inventors come up with great products for women and are misunderstood by male patent attorneys. These products solve female needs that sometimes only other women can understand. 

Sara Blakely, the inventor and founder of Spanx, mentioned having faced this issue when she came up with her idea. To get around it, she actively sought out a female patent lawyer to help protect her now widely-used product.

The success of Sara Blakely clearly shows the importance of having more women represented at every stage of the process. To support fellow women who are obtaining degrees in STEM and other innovative fields. To invest in women-led startups and encouraging women to commercialize their innovations. To recognize biases inherent in a supposedly gender-neutral patenting system.

By adding more women into the process, we can help to modernize the IP world and more effectively allow it to protect, celebrate, and reward creators, regardless of their gender, racial, ethnic, sexual, and class identities.