Intellectual Property

The Patent Gender Gap

A gender gap in patenting -- just like other gaps -- is detrimental for our innovation system.

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What do the fire escape, windshield wiper, and Kevlar all have in common? They were all invented by women (Anna Connely in 1887; Mary Anderson in 1903; and Stephanie Kwolek in 1964, respectively). These are just three examples of highly useful patents granted to female inventors. And yet, decades later, gender inequities still abound.

On April 10th, my Twitter feed was abuzz with #EqualPayDay posts with numerous statistics about salary gaps, proposals to close the gap, and reminders that gender inequities in the workplace extend far beyond salary alone. Indeed, here at Above the Law, the gender pay gap in Biglaw firms has been covered extensively. Women frequently cite disparities in salaries, bonuses, promotion opportunities, and more.

It’s no secret that the technology sector is far from exempt when it comes to gender disparity. There have been different campaigns to close the gender gap, from encouraging female college students to pursue STEM (science, technology, engineering, and math) majors to initiatives that start at a much younger age, like Girls Who Code.

Despite these efforts, inequality remains not only in salary, but also in pure numbers of male and female inventors (and, yes, amongst patent attorneys, as well) as well as in the way patent examiners adjudicate applications. While the gender gap has roots in historical issues, even today unconscious biases come into play.

According to a new study analyzing patent data from 2001 to 2014 (NB: the article is paywalled) — including reviews of maintenance fee payments, prosecution histories, text of patents, and whether or not applications were granted — gender inequities were revealed across the board. Not only do female inventors make up just a fraction of the inventing population, but they are less likely to be granted a patent when they apply. The study reveals that female inventors’ patent applications were more likely to be rejected, have their claims narrowed in scope, granted patents were maintained less often, and overall received fewer citations. With more than a decade of data to analyze, we’re not talking about a small sample size.

While this result isn’t exactly shocking, it is certainly revealing. Whether intentional or not, the data suggests that patent examiners are less likely to grant applications from women. Patent applications submitted by female inventors are likely to be more closely scrutinized and thus, when granted, are of higher quality than those submitted by male inventors. Even once their patents are granted, women are less likely to be cited. The issue cannot simply be boiled down to the fact that there women are underrepresented in STEM, so therefore also underrepresented in patent grants; there are systemic problems, and the data highlights the inherent biases in science and technology.

First, the researchers found that women inventors who had obviously female names (say, Mary or Jane, for example) had an 8.2% lower chance of getting their patents approved. If, however, the inventor had a name where it was more difficult to determine gender, or where it was not obvious (for example, an Indian or Chinese name where a United States patent examiner is less likely to know the common gender names for those ethnicities), there was only a 2.8% lower chance of a women being granted her patent.

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The researchers found even greater disparity with regard to patent citations. Those patents whose inventors had obviously female names were cited 30% less frequently than patents whose listed inventors were male. But for less common female names, not only did the citation rate not drop, but it actually increased; these patents were cited 20% more frequently than patents listing less common male names. (Interestingly, other studies have noted that mixed-gender patent applications have higher citation rates than all-male or all-female teams.)

Beyond the problems that this new study highlights, past projections suggest that women will not receive parity in the field of innovation for — depending on the project used — approximately 100 years. And, where women are listed as the primary inventor (of which, they make up less than 10% according to a 2016 paper), they usually hold patents in fields like jewelry and apparel, traditionally female-associated commodities.

The disparities in patenting aren’t limited to gender, of course. Past studies have also pointed to gender issues, but also of the innovation gap amongst people of color and those of lower socioeconomic background. A 2017 study examining patent applications in conjunction with federal income tax returns revealed that children are more likely to grow up to be inventors when they grow up in cities that have plenty of inventors already. This result is also gender specific, meaning that for a girl3 to be more likely to become an inventor as an adult, she must have had female inventors in her city. (Privilege, of course, also matters and children from affluent families are more likely than those from lower socioeconomic backgrounds to become inventors. Children who are African-American or Latino are also less likely to become patent holders later in life, holding equal for childhood ability levels in math.)

A gender gap in patenting — just like other gaps — is detrimental for our innovation system. New inventions are less likely to adequately address gender-specific issues (or those for minorities, persons with disabilities, etc.). Women may be less likely to secure venture capital for a new business without a patent, making it more difficult to move forward. Inherent biases can perpetuate a multitude of historical problems associated with gender gaps, including financial inequity. While I’m all for more scrutiny in the granting of intellectual property rights and think we should aspire to only granting higher-quality patents, the playing field should be level. It makes no sense to apply a higher standard of the grant of patents if the applicant is female rather than male.

While there is no single solution to closing the innovation gender gap, there are numerous steps that must be taken. Ensuring that an innovative environment and mentoring from female inventors exists from an early age is critical, as is reducing barriers to entry, such as high legal costs associated with patenting. Ensuring that unconscious biases, such as from name-gender association, can be addressed — for example, through anonymization in the patent application process would also be extremely helpful for female inventors.

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Krista L. Cox is a policy attorney who has spent her career working for non-profit organizations and associations. She has expertise in copyright, patent, and intellectual property enforcement law, as well as international trade. She currently works for a non-profit member association advocating for balanced copyright. You can reach her at kristay@gmail.com.

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