Waar zijn alle vrouwen? Addressing the gender imbalance in Dutch patent firms

Patent firms in the Netherlands have a problem. Despite being both a leading destination for patent litigation, and the country having a reputation of being socially egalitarian, there remains a distinct lack of women in leading partner positions in patent practices. This is at odds with the European market, with practices in London, Paris and Munich generally achieving much better gender parity than in the Netherlands.

Marleen van den Horst

According to JUVE Patent research, the best-known female litigators at the partner level are Marleen van den Horst from Dutch full-service firm BarentsKrans, Anne Marie Verschuur of Nauta Dutilh, and Judith Krens, who recently moved from Taylor Wessing to Pinsent Masons in Amsterdam.

But this is a very small number for a leading European patent jurisdiction and still, in many other patent practices like Brinkhof, Hoyng ROKH Monegier or Vondst, male partners dominate. The same is true for many international firms, such as Bird & Bird, Hogan Lovells, Simmons & Simmons or Freshfields Bruckhaus Deringer.

While the government is pushing some wider initiatives to address gender imbalance at the top tiers of large companies, such as passing a bill in 2021 to secure more women in boards of directors and advisory boards of large companies, at patent firms a gender imbalance – especially at partner level – persists. As Rutger Kleemans, patent partner at Freshfields, says, “We are obviously doing something wrong as a country.”

On a technicality

Some in the market say the historical discrepancy lies in patent being a technical area. Several patent lawyers comment that, while many Dutch women study law at university, they are often in the minority when it comes to completing studies in more scientific fields. This starts as early as high school, continuing on to university education and beyond. However, more initiatives to get women into subjects such as science, as well as an increased emphasis on the diversity of the profession, seem to be having an impact.

Theo Blomme, partner at Hoyng ROKH Monegier, notes that hiring women with a technical background or interest is less difficult now than five or six years ago. It is clear that more women are pursuing studies around science and technology, or have followed a science programme at school, he says, which may mean more women are taking an interest in a patent career.

“Naturally, this gets women in at associate level,” says Blomme. “It’s just a matter of time before we see them in senior roles in practice.”

But another Dutch litigator says that, in the Netherlands, the lack of women with a technical background is merely an excuse made by patent litigators unwilling to address the broader issues of inclusion in firms. They describe how partnerships based purely on billing lots of hours and making a large turnover can be incompatible with different expectations in the workforce. Of course, this is not unique to the Netherlands. And it seems it is not so much the educational qualifications as the social expectations which have the biggest negative impact.

Boutiques under scrutiny

The problem seems especially stark in the country’s IP boutiques, with Brinkhof and Hoyng ROKH Monegier having no women in patent partner positions. Currently, Hoyng has ten male patent partners, with six male patent partners at Brinkhof. Furthermore, at market challengers Vondst, none of its patent-specialist partners are women. However, all have females at associate level.

Here, Blomme suggests that the size of Hoyng’s patent partnership is partly why having no women at the top level is more pronounced. “Hoyng having fewer women in partner roles is maybe more noticeable given that the firm has more partners than its competitors,” he says. However, Blomme accepts that it is becoming harder for firms to make excuses: “From now, there is no good reason for the imbalance if women aspire to a partner role in patent litigation.”

“A big draw for female associates is when a firm has females in senior positions”

For de Lange, a change in society should have a trickle-down impact on patent firms. He says, “Even seven or eight years ago, we saw very few candidates who had both an interest in patent law and were women. This is slowly changing now – at Brinkhof, for example, we are welcoming more women than men into trainee positions, even in the patent team.”

Dropping-off point

While partner promotion for female associates remains a challenge, according to several leading Dutch lawyers, the influx of female patent litigators only began a few years ago. Thus, it stands to reason that the associate-partner discrepancy should right itself in a few years. Marleen Janmaat, HR manager at Brinkhof, says, “We are focusing on building up that pipeline. By 2023 we will have four female partners in other areas – but we know the transition in the patent team needs more work.”

Even if progress is slow, it seems that leading Dutch firms are beginning to address the stark imbalance. Among many, the hope is that in five years’ time they will have a different demographic at partner level. But amid the wider market, and especially among female associates, the reputations of boutiques being a ‘boys club’ is harder to shake off.

This is where, say lawyers at international firms, a cross-border community can help. One female partner says, “International firms often pay more attention to inequality early on.” A female associate at an international firm says, “The market often views boutiques, especially in IP, as being a bunch of friends with an inner circle that is hard to penetrate. For some female associates this can be off-putting, so when choosing a firm, a big draw is when a firm has females in senior positions – even if they are in other countries.”

Hiske Roos

Hoyng ROKH Monegier, although an IP-boutique, has also a strong network of offices with several women in its international partnership. The stark reality is that the IP practices in the Dutch offices of international or full-service firms do not fare much better as regards female partner representation. Of the 13 leading patent litigation practices ranked by JUVE Patent, a mere four have women at partner level.

Only one, Pinsent Masons, has two women in Judith Krens and Machteld Hiemstra who focus on patent.

Women need role models

As a result, while a new generation of female patent-specialist associates might be developing, the bandwidth for guidance and mentoring is not.

According to Hiske Roos, senior associate at Freshfields, this means the industry set-up in the Netherlands is almost a self-fulfilling prophecy. If younger associates do not see senior women in senior positions, they are less likely to be encouraged to reach the positions themselves.

She says, “Lots of women start in patent firms; in fact, there’s a wave of young women getting involved in patents in the Netherlands. But currently there’s a lack of role models, for example women who are very senior but also have children. This means younger associates don’t see that this set-up can not only work, but it can work well.”

Judith Krens, partner at Pinsent Masons and one of the most senior women in the Netherlands patent market, agrees. She says, “If there are already women in leadership, then it provides a more comfortable environment for women to grow into such positions. They can also better recognise female talent, whereas some male-only leaderships are quicker to dismiss more feminine qualities.”

Seen, not heard

Judith Krens

A perceived rejection of what society commonly views as more ‘female’ qualities is a trope which recurs when talking to women in patent law in the Netherlands. Anecdotally, some women have moved firms to join colleagues in teams which they feel display less masculine atmospheres.

This can reflect the approach of some firms, where financial targets are essentially the main basis for elevation to the partnership. One female partner says, “My current firm encourages a true work-life balance, which simply isn’t the case at other firms with male-heavy teams.”

Other lawyers note that when firms base their partnership decisions purely on turnover, this renders so-called ‘soft skills’ such as PR and professionalism as less important.

Some firms note that they have slightly lower financial targets for the partners, compared to other patent departments. This, they say, means that the threshold to become a partner is not as high. Therefore women are, if they so choose, better able to mix work with home life.

Managing expectations

However, even if firms are compliant, general regulation and employment law can be a barrier for women wanting to return to the workforce soon after having a child.

“Some male-only leaderships are quicker to dismiss more feminine qualities”

While women in the Netherlands are afforded 16 weeks’ maternity full pay, which includes up to six weeks before birth with the possibility of an extension, men have much less time.

Furthermore, while changes made in the depths of the Covid pandemic, such as working at home and more flexibility in working hours, could have helped address some causes of the imbalance, especially regarding childcare, some firms are back to 100% office-based work. This means that, if a woman wanted to return to the office sooner, depending on the employer it can be much harder to balance childcare between a couple.

Lawyers explain that it is often here where firms begin to notice a drop-off in women becoming partners, since this stage in the career trajectory often coincides with the age at which women want to start a family.

Thus, with fewer women of partner age visible in a firm, male associates naturally have more chances and less competition to prove their worth. On this, Kleemans says, “Firms need to manage maternity leave better.” Hiemstra agrees. She explains that it is perfectly possible for a woman, if she wants, to work even part-time. However, she notes that if a woman has a child, then practical tasks such as breastfeeding are complicated by the expectation to join, for example, a three-hour meeting with no breaks.

Having a gender-balanced team of leaders would better help manage the expectations for young women and in particular new mothers who want to become a partner. Krens says, “Firms with a better balance of leaders also stimulates men to more balance in their perceptions and judgments of colleagues.”

All about ability

Marleen van den Horst is a partner in the BarentsKrans IP and Technology practice group, and head of the industry group Healthcare and Life Sciences. In 1996, she became the first female partner in a Dutch law firm. But on the other hand, she says, discrimination, whether de facto or de jure, is no longer an excuse for a lack of women in senior partner positions. “Nowadays, women are elevated into the partnership according to the same standards as men,” she says. “Firms set certain requirements, whether for men or women – whether you make the partnership is a reflection on your drive and ability.”

She says that firms leave plenty of space for women to fight. “You have to be very determined and focused to get the position. Getting in is one thing, staying there is another as performance is strictly monitored and in tough times women sometimes get less backup from their male colleagues.”

“You must be determined and focused.. getting a position is one thing, staying there is another”

Furthermore, van den Horst suggests that the small size of the Dutch market contributes to women being less visible in the Netherlands. This is especially in comparison to, for example, the UK or Germany – here, there are simply more patent litigators and more women as a result.

She says, “Cases are fewer and international, so it is important to build up an international reputation. Generally, each patent practice within a multi-service firm in the Netherlands only has one or two partners, at most – and if that is the case, then the talent simply has to be good enough to make the cut.”

Acknowledging the issue

Conversely, some firm-wide diversity initiatives ensure female candidates are given preference to male candidates in both lateral hires and internal promotions. Other firms are pursuing diversity initiatives to help decouple gender bias from their approach to hiring. However, other lawyers detail pressure from clients to hit gender quotas. While this undoubtedly highlights the issue of gender balance, the approach is not without its pitfalls.

Machteld Hiemstra

As one senior male partner explains, “Our firm’s head of diversity has mixed feelings about this approach. While it is positive that clients demand that the firms they instruct do address issues of imbalance, it often means all the female partners across the firm get sucked into all the cases, just to hit the criteria.”

“A mix is valuable, but the industry shouldn’t lose sight of high standards of professionalism,” says a partner at a different firm. Furthermore, several lawyers detail a disconnect between what clients say and what clients do, for example being presented with a list of female names but not following up to check their roles. Often, they say, this can land the burden on less experienced associates.

As one female lawyer asks, “If a client pitch requires at least one senior female in the team, how do boutiques with no female partners retain such big client names?”

Women judges break the mould

On the other hand, the problem does not appear to extend to the judicial bench. In the Netherlands, multiple senior IP, including patent, judges are female – indeed, the District Court of the Hague has only two male judges and one male clerk. Rian Kalden also sits on the Court of Appeal. This is different to, for example, the UK, which in 2022 has so far had just one female deputy judge, Charlotte May KC, overseeing patent cases at the High Court. Furthermore, the Unified Patent Court has just elevated Kalden to its Court of Appeal while another Dutch judge, Margot Kokke, will preside over the Netherlands’ local UPC division.

Here, suggest some lawyers, a sense of autonomy is a contributing factor. This might also explain why, in the Netherlands, women are more often seen leading patent teams in-house, especially in the life sciences sector. They assume roles with responsibilities comparable to those of a partner position in a law firm, but the company structure is friendlier towards those seeking a work-life balance. For one, the financial pressures of a partnership are fewer.

One male patent partner’s experience is indicative of this trend. He says that since beginning his role, only six female associates have come through the doors. Only three remain, with the leavers going to an in-house position or starting their own firm.

“Currently there’s a lack of role models for young female associates in the Netherlands”

Perhaps it is the independence that such positions afford to women which makes them attractive places to work; undoubtedly, independently owned firms are freer of the structures and regulations which could deter women from the partnership at a traditional practice.

Driving for change

The impetus for change can slowly be seen at every industry level. While for some larger firms this is driven by the clients themselves, organisations such as ChiPS, a non-profit membership organisation dedicated to connecting women in technical fields, are becoming more visible for women in the Netherlands. The Dutch government, which clearly acknowledges a structural problem in senior positions, is passing regulations that extend to the boardroom.

Rian Kalden

While, in some ways, international firms have a built-in advantage in terms of accessing women in their wider networks, IP boutiques are also seeing a shift in demographics of new joiners and trainees. Blomme says, “In the last ten years, the number of female associates at Hoyng in Amsterdam has tripled.”

Janmaat says, “Now Brinkhof sees more female trainees than male trainees entering the firm.” Thus, it stands to reason that, in a few years, the change should also be reflected at partner level.

While patent firms hope that, in the future, more and more female litigators will make their way into the partner ranks, it will be hard work. According to JUVE Patent’s research on the up-and-coming Dutch litigators, in the past two years the ten lawyers in the Ones to Watch category have all been men.

The Dutch market, and its firms, need a significant change of gear if they are to provide female partner role models, who can in turn encourage young female lawyers and scientists to seek their future in the patent market.