During my senior year of high school, I was only one of five women in a competitive class on genetics. Earning the highest grade in the class meant that the teacher took an interest in whether I would choose to major in one of the sciences in college. I shared my aspirations
to attend law school with this teacher, and he encouraged me to pursue a degree at university in the sciences first and mentioned that certain fields may be offlimits to me without that type of undergraduate degree. On the other hand, my guidance counselor advised that a liberal arts degree would be a fine choice when pursuing a law degree, particularly in light of my interest in majoring in English. Fast forward several years to law school when I discovered my deep interest in intellectual property law (linked to my love of fashion) and, sure enough, I learned that I would be precluded from practicing in certain areas because my undergraduate degree in liberal arts did not provide the necessary background.
Women have become increasingly prominent in law and business over the last few decades. However, women remain underrepresented in STEM careers (science, technology, engineering and math), comprising just one quarter of the workforce.1 There are several theories as to why this disparity occurs, such as gender bias and stereotypes. Interestingly, countries with less gender equality have a greater number of women in STEM careers.2 The theory is that issues with life quality in countries with less equality drives women to strive for the greatest possibility of financial independence, which leads them to pursue careers in one of the STEM fields.3 Studies agree that the lack of women in STEM careers is not due to a lack of intellectual capability but, instead, is a product of societal pressures and expectations.
Now that there is a spotlight on the fact that so few women pursue degrees and careers in STEM fields, there is hope that the young girls who are currently being educated will have more encouragement and support to join those fields. But what are the options for women who are currently in the workforce whose choices are limited by the failure to pursue a degree in the STEM areas? Specifically, only attorneys that are members of the U.S. Patent & Trademark Office’s (PTO) patent bar can prosecute patents.4 In order to sit for the patent bar exam, a law degree is not required—but one must possess an undergraduate degree in one of the STEM subjects. This means that you can qualify to sit for the patent bar exam without a law degree once you complete an undergraduate degree in science, for example, but those who studied liberal arts at the college level and then earn a law degree are precluded from sitting for the patent bar exam. The net result is that decisions that impact one’s ability to practice in certain areas of the law are often made long before one even applies to law school, and the ability to handle design patents is a prime example.
Women are woefully underrepresented in the patent bar (only 25 percent) due in large part to the PTO’s eligibility rules and the fact that so few women pursue degrees in the STEM fields. While the PTO’s rules may make sense for the prosecution of utility design patents, they are too broad with respect to the practice of design patents, which relate to how a design looks rather than how it works. It is akin to attorneys practicing law in complex areas like tax or property without a related undergraduate degree.5
The PTO’s requirements unfairly limit female attorneys’ access to a lucrative part of the profession. The patent bar is heavily skewed toward men at approximately 70 percent to 75 percent, which is even higher than their share of the American bar.6 Moreover, by limiting the number of people who can prosecute design patents, the costs of obtaining them are artificially inflated.7 Thanks to the insight and vision of Second Circuit Vice President Olivera Medenica, the FBA is examining how our organization can press to change the current requirements to take the patent bar exam in order to curb the disparate impact that the rules currently have on female attorneys. This is a unique opportunity for our organization to make strides in gender equality in the legal profession.
1Anna Powers, A Stanford Study Offers Insights as to Why There are so Few Women in STEM, Forbes (Sept. 30, 2018, 11:00 AM), https://www.forbes.com/sites/annapowers/2018/09/30/a-stanford-studyoffers-insights-as-to-why-there-are-so-few-women-instem/#24c81150614b.
2 Gijsbert Stoet & David C. Geary, The Gender-Equality Paradox in Science, Technology, Engineering, and Mathematics Education, Psychol. Sci. (Feb. 14, 2018), https://journals.sagepub.com/doi/abs/10.1177/0956797617741719.
4Christopher Buttafusco & Jeanne C. Curtis, A Design Patent Bar for the Twenty-First Century (2018).
5Id. at 1.
6Id. at 3.