Long read

Beyond window dressing

Despite high numbers of women qualifying as lawyers, female representation in intellectual property, and particularly patent law, remains low. While changes such as flexible working and shared parental leave address workplace dynamics, more pressing are the structural issues which create this deficit.

8 March 2019 by Amy Sandys

Achieving gender balance in patent law is beyond being viewed as window dressing. There is more to be done, but many firms and organisations are making meaningful structural and cultural changes. ©GinaSanders/STOCK.ADOBE.COM

Walk into any courtroom during an intellectual property case, and it is likely the gender balance will be dominated by men. “The world of patent litigation is not diverse,” says Marianne Schaffner, partner in the Paris office of Dentons.

In IP, the first hurdle often faced by women is an assumption that work is often defined along gender lines, with one side gravitating towards soft IP such as trademarks and design law. “The IP world is a bit different from the rest of the legal market in that often women do trademarks and patents are reserved for men,” says Schaffner. “In patent litigation, in the market women must prove more than men that we can deliver, as well as understand and argue on, technology.”

From a business perspective, such an attitude is dangerous. Strides to achieve gender parity in IP have not focused enough on the fundamentals of law firm business. According to some IP lawyers, diversity appears only as an afterthought, or as a box to tick on the corporate values page of a law firm website. “Start by thinking about the business question,” says a senior lawyer at a leading London firm. “Why do we genuinely want to see this change? What will it bring to our business? And why should we start addressing these issues?”

Fighting cliché

To understand the lack of female representation in UK patent law, it is first crucial to understand the gender imbalance in STEM (science, technology, engineering and maths) education. In countries with a better record on diversity issues, such as many across Scandinavia, the balance in women and men taking STEM subjects at university level is almost equal. But in other parts of Europe, including the UK, Germany and France, lack of female science graduates persists.

Annsley Ward, Bristows

Annsley Ward

According to a report by the Higher Education Statistics Agency, in 2016/2017 only five subjects studied at UK universities were dominated by men, the highest percentage being engineering and technology, computer science, and mathematical sciences, recorded as being at 81%, 81% and 62% respectively.

With education in the physical sciences often the natural first step to a career in patent law, tackling this problem at its root might then alleviate the gender imbalance felt at its top levels. As one London solicitor told JUVE Patent, “The issue with engaging women in STEM is not even confined to university – it’s also a problem during the school years.”

In both physical and life sciences, identifying what discourages women from taking STEM subjects is crucial. Over the past two decades, numerous initiatives among UK schools, charities and companies are encouraging more women to participate in STEM subjects, as well as considerable effort being undertaken by patent law firms.

“We [at the London Chapter of ChIPs (which stands for Chiefs of Intellectual Property)] are working on outreach programs to girls in STEM and will be running a series of hackathons to tackle important issues in the profession on communication, pitch skills and more,” says Annsley Ward, senior associate in IP litigation at Bristows, and co-chair of the London Chapter of ChIPS. However, the problem often lies in encouraging women to make the leap from studying law at university to a career in the patent law  sector.

“I went to university with more men than women, but I think that balance has shifted significantly since then, especially for students studying law,” says Nicola Dagg, partner at Kirkland & Ellis. This sentiment is echoed by Schaffner, identifying an issue that perhaps extends beyond the UK patent career trajectory.

“At university, the number of female students studying law is higher than male students and in IP it is amazingly unbalanced; in the end, few of the female students will do patent litigation.” According to Schaffner, this can be at least partly attributed to the fact that there remain clichés to be fought. “For example, that women do trademarks for the fashion industry and men do sciences .”

“Clichés remain – women do trademarks for the fashion industry and men do sciences”

While undoubtedly more women are involved in soft IP litigation, evidence shows that gender imbalance in patent law is not necessarily a Europe-wide issue. Sabine Agé, partner at Hoyng Rokh Monegier suggests that the IP market in France is enviable in comparison to its European counterparts, with French boutiques enjoying a balance of men and women to partner level. “The same applies to the IP teams of full service firms,” says Agé. “When I speak at a conference in in Germany or other countries of the north of Europe, where the audience remains mostly comprised of male patent lawyers and patent attorneys, I, as a female patent litigator, feel very lucky.”

Such experiences point to a need to readdress this balance and, on a national level, encourage a broader range of people to pursue a career in patent law. Early exposure to the wide range of career options which an education in sciences and law can present is one option; involvement of senior female lawyers and patent-attorneys in mentoring programmes and panel discussions for students also has a proven impact.

Follow the leader

It is thus vital  to give female role models involved in STEM a platform, from which younger women feel able to seek career advice and mentoring. While often confined to school years, this approach is advocated  by many women across all echelons of the European legal patent market. In Germany, this includes Ulrike Voss, presiding judge of the 15th Patent Senate at the Higher Regional Court Düsseldorf.

In an interview with JUVE Patent, as part of the Women in Patent series, Voß comments that it is women in leadership positions who have the biggest impact on recruiting more women in the judiciary. While, professionally, Voß is at the other end of the spectrum to someone starting out in patent law, the same principle applies. The most effective impetus for women to success in patent is via encouragement from other women. “It is the experienced female judges who pique other women’s interest in the field and offer assistance,” says Voss.

The same can be said for private practice, where promoting women into partner or management positions creates a clearly defined career trajectory towards which young female patent lawyers  can aspire. For women starting out in STEM subjects, exposing them to such role models is paramount in fostering an atmosphere of support and encouragement.

With a low number of women in STEM narrowing the pool of female-based talent, however, the number of women opting to study patent law following a science degree is lower still. This leads to less women applying for lawyer roles, and less women being represented at partner level.

It is therefore not enough to simply place women in leadership positions and hope that a new generation of female lawyers will be inspired organically. It requires changing the perception, by both men and women, of women as leaders – which means undoing the misconceptions often present. “As a senior business leader and litigator, I have faced a variety of conscious and unconscious gender biases. To change that bias, I believe people need to see more women as leaders,” says Dagg.

Balance board

Achieving this balance in the first place is often contingent on the fostering of an organisational culture in which equality and diversity is encouraged, or even celebrated. “Law firms themselves are doing a lot to help – partners or senior figures are being given the topic of diversity as something to work on specifically, it comes under their remit and it being properly addressed in organisational framework,” says a partner at a leading London firm. “Rather than just a cynical approach which leads to window dressing, there has more recently arisen real dedication to the issue.”

Nicola Dagg, Kirkland & Ellis, partner

Nicola Dagg

And many IP firms, especially those with a culture of diverse talent recruitment, are making an impression on the wider IP market in terms of attitudes toward female leaders. This is not only about recruiting female lawyers, says Dagg – firms are finding ways to retain and promote women, while remaining considerate of personal life choices. This in turn leads to organisations with a broader outlook and a wider range of talent.

“Organisations have put forth meaningful efforts to recruit and retain female lawyers, and to build supportive cultures, and the results are tangible,” says Dagg. “I see a real need for diversity in law firm practices.”

And it not just IP firms which benefit from a fresh approach to organisational culture. “Clients ask about this [diversity] quite rightly at pitch stage. Our team members also want it, and it drives innovative thinking,” says Dagg. Another senior lawyer explained that with change often driven from the client side, every facet of the patent  industry has an interest in ensuring female lawyers are happy and secure in their roles. This not only strengthens the law firm-client relationship, but ensures a wider pool of talent to satisfy the client demands.

On the client-side, too, it is easier to see the impact of changing mindsets. “In patent litigation, the legal tech space is traditionally male-dominated, but I’m seeing more women in meaningful roles within it, as well as within the broader UK IP space,” says Dagg. “This can often be seen at the client level with more and more female in-house lawyers.”

On the other hand, says one solicitor, it is sometimes the client side which can be the most resistant. “It’s still a service industry, and we still have to think about clients. As a lawyer, sometimes you have to work on cases that require around the clock commitment. This can make it difficult for clients to understand how valuable flexible working is for some women – and men – for example, if they have young children. This attitude is something which might take longer to change.”

Programme power

Underpinning much of the progress towards achieving gender parity in patent law are the numerous networks set up to advocate for women in IP. While many have roots in the US, branches are opening across Europe, including in the UK. Focusing on women at all stages of their patent career, whether newly-hired counsel or managing partner, ensures meaningful links can be made early on.

“For six years, I have organised an event for Women in IP with AIPLA  [American Intellectual Property Law Association],” says Schaffner. “This is the opportunity to speak about hot topics in IP and to give the floor to successful women who share their experiences.” But she stipulates that too often such initiatives refer back to tired tropes including balancing family and work commitments. For many women in the patent community, these are a sideshow.

Marianne Schaffner, Dentons

Marianne Schaffner

Given that Women in IP is part of the broader IP Inclusive organisation, empowering women from diverse backgrounds is significant part of its remit. Schaffner says, “We try to avoid the topics like women with children for instance, as today this topic is really one which men are interested in. Diversity must be inclusive and not exclusive.”

Also pressing are issues surrounding the gender pay gap, for example. “Equal pay means increased and more equitable access to opportunities in the market,” says Bristow’s Ward. The ChIPS network is another organisation instrumental in connecting women in patent and IP across borders. By advancing women in tech, law and policy, ChIPS addresses three major industries through its global network of events, as well as more localised issues such a pay disparity.

“Increased diversity, after all, benefits all of society,” says Ward. “The network benefits from leaders – both men and women – in the judiciary, policy and technology who open doors of opportunity for each other and pay it back to the next generations.  It is not just about lawyers for lawyers, but where law sits in society in the context of innovation and policy.”

“ChIPS is a significant part of many people’s life in IP,” says another senior solicitor. “It’s led by dynamic women in the US, and it helps across the board, for all levels of patent lawyers. It’s such organisations which help move gender diversity away from a box-ticking exercise and encourage those involved in patent law to change the way they think.”

Time for change

Until the mid-20th century, it was not uncommon for female inventors to submit patent applications under their initials, or by using an androgynous name. Social change has played a major role in making strides towards achieving gender parity in the patent-invention field. But in the legal community,  especially at more senior levels, underrepresentation persists.

There are signs of change emerging, however. “Ten years ago, IP firms were just paying lip service, but now people are actually acting on it,” says a senior solicitor. “There has been, and will not be, any change overnight, but the gradual shift in attitudes along with structural adjustments in organisations means the groundwork of how to do it in the future is being laid.”

Today’s patent practices in law firms are learning from past mistakes. With the broad question of gender parity – including promotion to senior positions, workplace gender balance and equal pay – at the forefront of many mind in the legal profession, legal practice has a solid basis from which to work.

Ward says, “Where, once, I was only one woman in a courtroom of all men, there are far more women on both sides of the courtroom and, importantly, doing advocacy. There is no doubt that there is a long way to go to see the more women at the bench, partnership and policy leadership roles – but the movement is there and firms across London are taking serious measures to address these issues.”

International Women’s Day is celebrated on 8 March every year.