Well, don’t take my word for it, but the actual women who practice in this area certainly seem to think so.
There’s an in-depth look at the gender dynamics at play in intellectual property cases over at Big Law Business, and the data and anecdotes reveal there’s a lot of room for improvement in the practice area.
Take the recent work of trial consultant Tara Trask, who recently took a look at the roles of 50 attorneys across seven intellectual property trials. The results? Not encouraging:
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Women [Trask] studied mostly participated in non-speaking support roles, and represented only 8 percent of attorneys in leadership positions, such as lead counsel, partners in speaking roles at trial, and in-house or client service. Only 28 percent of attorneys in the seven cases—team leads, partners, and associates—were women.
And that data is backed up by the experiences of women in the field, such as Wendy Akbar, a partner (shareholder in the parlance of the firm) at Venjuris, who has observed the more junior roles that get reserved for women:
“I don’t see much in the way of senior women patent litigators at the trial table or negotiating with adversaries, or at the arbitration table, or in any kind of senior position,” Wendy Akbar, a Phoenix-based patent litigator and shareholder at Venjuris PC, said. “There are a few, but they seem to be more few and far between.”
Some of the challenges to increasing diversity in the field are unique to the particularities of patent litigation:
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Some female patent litigators see an under-representation of women in IP litigation, and they told Bloomberg Law that the reasons aren’t one-dimensional. Fewer women than men graduate with undergraduate degrees in technical fields such as electrical engineering, they said. Technical degrees aren’t a prerequisite for IP litigators, but can lay the groundwork for and spur an interest in patent work. Like all litigators, they said, women face the challenge of balancing families and the demands of being an IP trial lawyer.
Despite diversity efforts at some law firms, a gender gap is prevalent in intellectual property litigation, even as other practice areas, such as family and corporate law, have shown improvement, female patent litigators said.
But, according to women practicing in the field, these structural issues can be overcome. It is the old boys network that compounds the problem and prevents women from getting a foothold:
Having technical expertise, however, is not required to be a successful patent litigator, Annie Rogaski, a former patent litigator and now general counsel and vice president at imaging technology startup Avegant, said.
The larger hurdle for women is the historical way in which opportunities are handed down at law firms, Rogaski said.
She said she has heard male colleagues say numerous times: “I’m going to pass this case on to my buddy.”
Having client relationships is power, Rogaski said. “If that’s being passed down from man to man, you have a historical barrier where women can’t break through.”
The women that spoke with Big Law Business see the bias they face as the insidious, unconscious variety that is often blamed on the (sexist) preferences of clients:
None of the attorneys interviewed by Bloomberg Law said they faced overt prejudice or discrimination in the workplace. But they said there was an unconscious bias. In her time consulting on about 60 patent cases in the last 10 years, Trask said she has mostly seen women on trial teams examining damages experts rather than questioning technical experts. There’s an age-old, implicit bias that men have better math and science capabilities, she said.
“The knee-jerk is that you’ve got a safer bet with a man, if you’re making decisions on the trial team and you’ve got to justify those to the client,” Trask said.
Chalk this up to depressing, but predictable news. Hopefully with more awareness and outreach progress can be made.
Kathryn Rubino is an editor at Above the Law. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).