Intellectual Property

Closing The Patent Gap

Access to professional guidance should lead to more issued patents for female and minority inventors.

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The statistics paint a stark picture. There is a patent gap in this country, whereby women and minorities are underrepresented in the ranks of inventors holding patents. This is not a new phenomenon, but one which has attracted more attention lately. Especially in this age where increased entrepreneurship is embraced as the solution to a host of economic problems, an increased focus on making sure that female- and minority-owned businesses participate in the patent system is not surprising. And where more resources and attention are being dedicated to increasing female/minority education and opportunity in the hard sciences, there is a natural hope that there will be increased patent activity from these new participants in the innovation-driven economy of today.

A recent Bloomberg article helps frame these issues, even as it focuses on the more acute challenges faced by minority women in having their patent issuance rates meet their admirable progress in starting up new businesses. As the article notes, however, not only is it helpful to frame the problem — we are also beginning to see efforts to find solutions arise. At the forefront of these efforts is the recently launched Cardozo Patent Diversity Project, which aims to “to build relationships with governments, agencies, local, state and national bar associations, premier technology organizations and entrepreneurial networks” in the hopes of building a “sustainable network of pro bono lawyers for patent work both now and in the future.” Funded by Google, and arising out of the experiences of Cardozo’s own Tech Startup Clinic, the Patent Diversity Project is an interesting foray into trying to address the systemic disadvantages facing women- and minority-owned businesses when it comes to securing patent protection. More than just an interesting example of an alliance between an academic institution and a publicly traded company looking to act on social interests, the project is interesting for a few reasons — starting with its focus on serving traditionally underrepresented applicant pools in terms of seeking patent protection.

What is perhaps most interesting about this initiative’s approach is its recognition of the importance of access to competent counsel as a critical component of eventual successful patent filing activity. Anecdotally, I have seen the importance of professional legal guidance for female inventors — for my mother and my wife, no less — firsthand. My mother has filed patent applications on her innovative disposable towel product and my wife holds two issued patents for her innovative medicine dropper. One family, two female inventors. They came up with the ideas and get all the credit for that. But it definitely helped that they had access to my guidance when it came to actually seeking patent protection on those ideas. Again, the main point is that access to professional guidance should lead to more issued patents for female and minority inventors. Taking steps to increase that access can only help matters in my view.  

Personal experiences aside, it is well known that organizations that make obtaining patents easier for their employees to generate more patents. Whether it be IBM, Samsung, or any other company that has made obtaining patents a priority — the game plan is similar. They set up an internal infrastructure for identifying potential patentable inventions and quickly turning those ideas into actual patent applications. Easier said than done for startups, especially ones with limited resources. But leveling the playing field by increasing pro bono activities around counseling those startups on this very specific — but potentially very valuable, and thus important — activity is a great start.

But while the focus of the Patent Diversity Project may be specific, the pathways available to it to make an impact are not. Tapping into the network of clinics at law schools nationwide is a solid approach. So too is casting a wide net for potential partners in this effort, whether they be in academia, government, or the private sector. In short, taking a holistic approach to trying to solve a thorny, yet very specific, problem gives this project the best chance of success. Likewise, if the project does have some initial success, it could potentially be copied by law schools and organizations nationwide, or perhaps even attract other big-name sponsors on top of Google’s initial investment.

Ultimately, it is always important to remember that incentives matter — and drive behavior. For startups of all stripes, whether or not they come to seek patent protection is often a function of both their balance sheets (to afford competent patent counsel and filing fees) and their calculation about the potential future value of having patents in the first place. Yes, there are serious arguments that continue to rage among the learned IP community about the true value of patents in this age of Alice and IPR. At the same time, there remains a mystique about patents as a marker of a startup’s commitment, professionalism, and leadership chops. As such, minority- and women-owned businesses would surely benefit from increased numbers of issued patents. (There are even benefits to going through the patent application process for startups that we can perhaps discuss in a future column — even if no patent ever issues.)

But what about the lawyers? In order for this or similar projects to succeed a renewed commitment by the patent bar to pro bono is necessary. That should be an easy sell. Younger lawyers seeking practical experience should be quick to volunteer. So too older, financially secure patent lawyers with newfound time to give back to others. Even experienced lawyers in the thick of their careers can find at least some time to consult on patent issues with a female- or minority-owned startup. As I said before, I have two female inventors in my immediate family. Needless to say, helping them with their patent issues has been a rewarding experience. At best, however, I have just started to do my part to help close the patent gap. Who else wants to help?

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Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

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