On March 27 and April 3 of this year, the House Subcommittee on Courts, Intellectual Property and the Internet and the Senate Subcommittee on Intellectual Property held hearings on “Lost Einsteins,” women and underrepresented minorities who do not have equal access to the income-generating and innovation-promoting benefits of the United States patent system.

The hearings came on the heels of a Yale report — and the subsequent reaction to the study — which found that only 10 percent of U.S. patent inventors are female, and that more than 80 percent of patents list no female inventors. (For more on this subject and on the Yale report, see the Fall 2018 issue of Fenwick’s Intellectual Property Bulletin.) The Senate hearing also followed last year’s passage of the Study of Underrepresented Classes Chasing Engineering and Science Success Act of 2018, which directed the U.S. Patent and Trademark Office to study and report on the number of patents obtained by women, minorities, veterans and low-income individuals. As stated by Senator Christopher Coons (D-DE), Ranking Member of the Senate IP Subcommittee, “Congress, the PTO, other agencies, the private sector [] need to work together to ensure opportunities for all inventors to patent and commercialize their inventions because talent is distributed evenly across the human genome and yet participation in invention, innovation, and in particular patent protection, is not. That jeopardizes our ability to lead globally and undermines our investments in a brighter future.”

Witnesses at the hearings included inventors, academic researchers, industry counsel and Michelle Lee, former Fenwick partner as well as former Under Secretary of Commerce for Intellectual Property and USPTO director. Because the USPTO does not collect data on race, veteran status or income of patent applicants, witnesses at the hearings focused their testimony on gender disparities while urging the patent office to collect data on the other underrepresented groups.

In February, the USPTO released the Progress and Potential report, which provided information inferred from the assumed gender of inventors’ names. The study showed that the percentage of women patent inventors reached a high of 12 percent in 2016. The number of patents with at least one woman inventor grew from seven percent in the 1980s to 21 percent in 2016, but the growth rate in recent decades has slowed. In addition, the percentage of patents by either an individual woman inventor or a team of all-women inventors is about four percent and has shown little growth since 1976. The share of women on gender-mixed inventing teams has actually fallen since 1976.

In the House subcommittee hearing, Dr. Ayanna Howard, a roboticist and professor at the Georgia Institute of Technology, made a few friends with members of the patent bar by sharing her secret for obtaining patent protection, saying, “I discovered a bit of a trick. Hire a great patent lawyer.” Howard acknowledged that the price tag is not sustainable for most small business owners, however, and pointed out that more resources are needed for those people. She testified to the need for more pro bono assistance for inventors.

While access to patent prosecution resources may be part of the problem, data in the Progress and Potential report indicates that it surely is not the only impediment faced by women inventors. According to the report, the percentage of women patent holders who hold their patents as individuals is roughly equal (about 15 percent) to the percentage of women patent holders who assign their inventions to public research organizations. In contrast, “the women inventor rate on patents granted to business firms is persistently the lowest,” climbing “from only 4 percent in the 1977-1986 period to 12 percent in the last decade.” As stated by many witnesses at the hearings, more data, such as the proportion of women inventors that claim small entity status at the USPTO, is needed to determine whether resources should be focused on pro bono legal assistance to increase female patent participation.

Other testimony at the hearings made clear that a multifaceted approach is needed to address the inequity of opportunity for potential women inventors. Witnesses at the hearing proposed several solutions to the barriers shown by the data. These solutions varied from providing more images of women inventors in the media, supporting California’s new requirement of female representation on corporate boards, addressing the venture capital funding gap and enforcing laws that provide a more welcoming environment to women employees to ensure that women stay in the workforce long enough to develop the expertise to invent. Senator Marcia Blackburn (R-TN) suggested that Congress could take a first step by replacing the term “lost Einsteins” with “lost Marie Curies.”