Innovation is the foundation of the patent system and gender diversity is crucial for advancing innovation.1 Why? Because gender diversity ignites new discoveries through expanding viewpoints, questions, and areas of interest to be explored.2 It follows that there is, or at least should be, a strong correlation between gender diversity and the patent system. In the World Intellectual Property Organization’s (“WIPO”) recent 2023 publication, The Global Gender Gap in Innovation and Creativity: An International Comparison of the Gender Gap in Global Patenting over Two Decades (the “Report”), the Report analyzes women’s involvement in global patenting over the last two decades and finds women to be involved in only 23% of all applications, which represents 13% of all inventors listed.3
Despite these low numbers, the Report shows that women’s participation in patenting has been moving in a positive trajectory.4 However, if current trends are maintained, the 50% target will not be reached until around the year 2061—still a long way off from achieving parity in global patenting.5 While the trend in women’s participation in patenting is encouraging, there are a plethora of factors causing the lack of gender parity in patenting from keeping up with the times. That leaves us with two questions, (1) why will it take until 2061 to achieve gender parity in global patenting, and, ultimately, (2) where should efforts be focused to help achieve gender parity sooner than 2061?
Barriers for innovative women have existed since the formation of the patent system.6 The first U.S. patent statute, the Patent Act of 1790, did not officially constrain women from patenting their inventions, but marital laws often required a woman’s patent to be issued either under her husband’s or her father’s name, which was attributed to both property laws and societal customs at the time.7 Though much has changed, the Report reveals that gender bias factors, such as “the socio-economic context of the family in which they grew up as girls, but also that in which they pursue their women’s life[,]” including (1) “their care-giving responsibilities[,]” (2) “[their] work environment, in particular their specialization and sector of employment[,]” and (3) “the culture and institutions of their country[,]” continue to contribute to women’s lower participation in patenting.8 It has been suggested that other factors, such as, women’s tendencies to work alone less often than men and women’s lack of business support and access to legal representation, have contributed to the gender gap in patenting as well.9
Regardless of these factors, women have continued to persevere, which takes us to our first question: Why will it take until 2061 to achieve gender parity in global patenting? One hypothesis is that women are not as attracted to science, technology, engineering, and math (“STEM”).10 Rather, it is quite the opposite. Statistics have shown that more women are graduating in STEM fields than men, but the distribution of women inventors by technological field is unbalanced, with the lowest participation of women are in fields related to mechanical engineering.11 While expanding the pipeline through higher education and STEM jobs seems like the necessary precondition, the United States Patent and Trademark Office (“USPTO”) noted that this is not an adequate solution to expand the participation of women as patent inventors.12 Because, even with growing inventor team sizes, the overall gender composition across all inventors has not changed considerably.13
Another study indicates that “around half of the patent gender gap is due to women being more likely to abandon their patent applications after  discouraging replies [from the USPTO] rather than persisting in this back-and-forth process with the patent office.”14 Further, in equivalent jobs, women tend to earn less than men, which can lead to the financial difficulty of obtaining a patent or, as a first step, hiring a patent attorney.15 These few examples are not an exhaustive list of why achieving gender parity in global patenting is predicted in 2061, but rather a glimpse as to why the gap in gender diversity in patenting isn’t decreasing at a faster rate.
As to the second question, where should efforts be focused to help achieve gender parity sooner than 2061, there are multiple outlets that can be pursued. A key focal point is early exposure to STEM. The Institute for Women’s Policy Research, in its briefing paper titled The Gender Patenting Gap, indicated that “initiatives that encourage inclusion of women and girls into STEM, at all levels of the pipeline, can contribute to closing the gender patenting gap.”16 This could be done through programs such as Girls Who Code and the Girl Scouts.17 For example, the USPTO and the Intellectual Property Owners Education Fund partnered with the Girl Scouts to offer an Intellectual Property Patch designed to raise awareness and boost interest in innovation and protection of intellectual property, particularly in regard to the STEM fields.18 As a result, this could increase involvement in fields, such as electrical and mechanical engineering, with a small representation of women.19
In addition to focusing on how to increase women’s entry into STEM fields, “[s]cholars have examined how to increase women’s … retention in scientific fields, focusing both on interpersonal interventions (such as mentorship, outreach to underrepresented groups, and campaigns against stereotypes) and systematic changes.”20 As indicated, one solution is to develop programs to improve mentoring and networks for women engineers.21 Mentorships can take many forms, but providing women engineers with female mentors who are inventors or even patent attorneys can be a critical step towards closing the gender gap in patenting.22 Female inventors and patent attorneys can offer young women the right tools to improve both their information gap and confidence gap in the field of innovation.23 Consequently, this can bring newwomen into the patent system, which, according to the USPTO, “is one of the most important channels for expanding women’s participation [in patenting inventions].”24
Furthermore, the continued push for policies and actions to stimulate gender diversity can be taken.25 The USPTO took this step by conducting a randomized control trial intended to offer additional assistance to applicants who are in need of legal representation.26 Through this trial, the USPTO found that “[w]hile both men and women applicants benefited [from additional assistance during patent examination], the probability of obtaining a patent was 11 percentage points greater for women, and the effects were largest for U.S. inventors, new U.S. inventors, and in technology areas where women had the worst relative outcomes.”27
Essentially, various studies, in combination, focus on the beginning of a girl’s education through the patent examination process in hopes of closing the gender gap in global patenting. However, a WIPO Magazine article from 2018 noted that it is “[m]ore than a numbers game.”28 In particular, these numerical studies have highlighted certain obstacles that have contributed to the problem but fail at uncovering a working solution.29 Even though five years have passed since the publication of this WIPO Magazine article, all that we have learned still is that there are several solutions that may help to decrease the gender gap.30 Though the solutions may be helpful, the gap isn’t closing at a significantly faster rate. This is surprising, as there are a handful of organizations and numerous studies dedicated to gender disparities in intellectual property. So why hasn’t a tangible solution been reached? While there is no definitive answer, the unconscious bias of the current and past generations could be preventing the solutions, or lack thereof, from making a bigger impact on society.
1 See Innovation and Intellectual Property, WIPO, https://www.wipo.int/ip-outreach/en/ipday/2017/innovation_and_intellectual_property.html (last visited Apr. 9, 2023); see also The Global Gender Gap in Innovation and Creativity: An International Comparison of the Gender Gap in Global Patenting over Two Decades, WIPO (2023) [hereinafter Global Gender Gap].
2 Nielsen et al., Gender diversity leads to better science, PNAS (Feb. 21, 2017), https://www.pnas.org/doi/10.1073/pnas.1700616114.
3 Global Gender Gap, supra note 1.
4 Id. at 1.
6 Malek, Slowly But Surely: Closing The Patent Gender Gap, IP Bytes, https://blogs.luc.edu/ipbytes/2019/04/01/slowly-but-surely-closing-the-patent-gender-gap/ (last visited Apr. 9, 2023).
8 Global Gender Gap, supra note 1, at 3.
9 Id. at 8-9.
10 Id. at 3.
11 Id. at 1, 33.
12 U.S. Patent and Trademark Office, Office of the Chief Economist, “Progress and Potential: 2020 update on U.S. women inventor-patentees,” IP Data Highlights, no. 4 (July 2020), https://www.uspto.gov/sites/default/files/documents/OCE-DH-Progress-Potential-2020.pdf [hereinafter Progress and Potential 2020 update].
13 Global Gender Gap, supra note 1, at 25, 30; see also See WIPO, supra 1, at 25, 30; see also U.S. Patent and Trademark Office, Office of the Chief Economist, “Progress and Potential: A profile of women inventors on U.S. patents,” IP Data Highlights, no. 2 (February 2019), www.uspto.gov/sites/default/files/documents/Progress-and-Potential.pdf.
14 Larrimore Ouellette, Policy Experimentation to Address Inequality Among Innovators, JOTWELL (Apr. 4, 2023), https://ip.jotwell.com/policy-experimentation-to-address-inequality-among-innovators/?_gl=1*17epl7f*_ga*NTM2NDg5ODEzLjE2ODA5NzYyMTQ.*_ga_BXXRV43J3Z*MTY4MTA3Nzk4Ny4yLjEuMTY4MTA3Nzk4Ny4wLjAuMA.
15 Shaw et al., Closing the Gender Gap in Patenting, Innovation, and Commercialization: Programs Promoting Equity and Inclusion, IWPR at 2, https://iwpr.org/wp-content/uploads/2020/10/C471_Programs-promoting-equity_7.24.18_Final.pdf (last visited Apr. 9, 2023).
16 Milli et al., The Gender Patenting Gap, IWPR #C441 (July 2016), https://iwpr.org/wp-content/uploads/2020/12/C441_Gender-Patenting-Gap_BP-1.pdf (emphasis added).
17 Malek, supra note 6.
19 Global Gender Gap, supra note 1, at 1, 19 (“Regardless of the region, we always find the chemical fields at the top and the mechanical engineering fields at the bottom.”); see also Hunt et al., Why Don’t Women Patent?, NBER #17888 (March 2012), http://www.nber.org/papers/w17888.
20 Milli et al., Equity in Innovation: Women Inventors and Patents, IWPR #C448 at 31 (Nov. 29, 2016), https://iwpr.org/wp-content/uploads/2020/12/C448-Equity-in-Innovation.pdf.
21 Hunt, supra note 19.
22 Galli et al., Closing the Patenting Gender Gap Requires More Women Patent Attorneys, LAW.COM (Feb. 17, 2021), https://www.law.com/thelegalintelligencer/2021/02/17/closing-the-patenting-gender-gap-requires-more-women-patent-attorneys/.
23 Tregillis et al., How female inventors can fix STEM’s gender gap, WEFORUM (Jan. 19, 2022), https://www.weforum.org/agenda/2022/01/how-female-inventors-can-fix-stem-gender-gap/.
24 Progress and Potential 2020 update, supra note 12.
25 Global Gender Gap, supra note 1, at 33.
26 U.S. Patent and Trademark Office, Office of the Chief Economist, “Closing the gender gap in patenting: Evidence from a randomized control trial at the USPTO,” Economic Working Paper Series, no. 2022-1 (Nov. 2022).
28 Dan L. Burk, Bridging the gender gap in intellectual property, WIPO Magazine (April 2018), https://www.wipo.int/wipo_magazine/en/2018/02/article_0001.html.
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