“The UPC is well-placed to advocate for gender equality among patent practitioners”

The UPC opening its doors last June heralded a golden opportunity for a legal institution to advocate for gender equality at the pan-European level. Historically, the legal profession in general has had an uphill struggle to reach gender parity under the banner of equality, especially in its fostering of better diversity at a senior or partner level. Here, the imbalance is especially stark in IP law. But the UPC is in a strong position to set a precedent to other institutions not constrained by historic power structures.

UPC’s new roots

While no concrete statistics exist on the exact numbers of women in partnership roles at leading firms across Europe, some jurisdictions are clearly further along the path to gender equity than others. For example, the Dutch market has just a handful of senior women in partnership roles; in Germany and the UK, according to JUVE Patent research, the number of leading female individuals is also low comparative to the countries’ market size.

“The UPC benefits from insight from practitioners with varying backgrounds”

On the other hand, French firms have often struck more of a balance, with many firms dominated by female partners. Across all jurisdictions, however, the imbalance can appear stark between international firms, mixed practices and IP boutiques; the latter two often remain constrained by their historical power structures, where male-heavy leadership and a culture in which fostering diversity is only recently emerging as a priority can lead to a lack of female progression.

The UPC is, theoretically, free from such constraining bonds. It is not the latest iteration of a 200-year-old, grandfather-father-son institution, where male managing partners dominate, and outdated paternity leave policies prevent women from striking a work-life balance.

As a pan-European court with a global reach, the UPC benefits from expertise and insight from a multitude of practitioners with varying backgrounds.

From the inside out

The UPC came of age during the time when new generations are taking female representation more seriously. It is not considered modern to have few to no women in senior positions. From the inside, the UPC is clearly making an effort to hire equitably. In terms of gender parity, the effort to hire an equal number of women and men is demonstrated at the senior level.

Of its seven-strong presidium, which is responsible for the court’s general management, four are women; one of its two presidents, the president of the court of first instance, is Florence Butin. Of its 37 legally qualified judges, 18 are women; however, of the 68 technically qualified judges, this number drops to just 15.

“The UPC is clearly making an effort to hire equitably”

This pattern is representative of the IP legal profession in general, whereby it is rarer for women than men to work in more technical-facing roles such as patent attorneys or inventors. According to EPO statistics, as of May 2023 only 13.2% of European inventors were female; a World Intellectual Property Office report found that, between 1999 and 2020, only 23% of all filed PCT international applications involved at least one woman. Of these, a majority name at least one man as a collaborator.

Thus, women and male allies involved in the patent profession have long advocated for more programmes to involve women and girls in science, technology, engineering and maths (Stem) subjects, especially early on in their education. It is hoped that, by launching such initiatives, academic inspiration through role models will pave the way towards gender parity and gender equality in related careers further down the line.

No UPC policy forthcoming

On the other hand, following a JUVE Patent request for information, registrar Alexander Ramsay confirmed that the UPC currently has no diversity and equality policy. This is surely a misstep for a modern court with an eye to the future of patent litigation. Gender-based initiatives remain vital to not only ensure influential institutions do not remain rooted in historic power structures, but also to ensure members can hold said institutions to account for their purported mission statements.

“It’s vital new and influential institutions provide clear commitments for diversity”

Such a policy would also demonstrate that the UPC is not afraid to give opportunities to a wider demographic than that which has historically dominated patent law. Thus, it is also vital that new and influential institutions such as the UPC provide clear guidelines on their commitments, or at least efforts, to integrate a more diverse workforce. This is especially crucial during the court’s early stages when it is at its most malleable; user input will help shape the court for the future.

Equality and diversity policies are also vital for other demographics historically underrepresented in the legal profession. This includes, but is not limited to, Black people, people with Asian heritage, people from a mixed-race background, or those identifying as LGBTQ+. On these fronts, the overall patent profession, especially in Europe, has even further to go to achieve true representation.

All eyes to Luxembourg

In some respects, the UPC is already setting a precedent, albeit in gender parity on the visible senior level. The high-profile case regarding transparency, which is pending at the UPC Court of Appeal in Luxembourg, has a three-woman-strong legally qualified judging panel. This remains a rarity in Europe. Some jurisdictions, such as the UK, do not even have one full-time female patent judge.

“The UPC must work diversity into its goals to set a precedent for new generations”

Historically, forces have shaped Europe’s various legal systems in such a way as to produce a disparate map of gender opportunity. A modern court grounded in modern sensibilities is well-placed to demonstrate how the profession is consciously shaking off the patriarchal shackles which have for so long shaped its output. But the UPC must do more to work diversity into its goals. Only then can it set a precedent for generations of patent lawyers to come.