Law360 (November 18, 2022, 7:53 PM EST) — Santa Clara University School of Law’s High Tech Law Institute and the U.S. Patent and Trademark Office on Friday encouraged members of the intellectual property community to explore ways to take risks and expand diversity, as part of a joint conference on pilot programs. While expanding diversity has become a widely stated goal across businesses, the best practices for doing so are still being figured out in many instances. Here are three takeaways from the Innovator Diversity Pilots Conference at Santa Clara for what’s been learned during that trial-and-error process.
1. Don’t wait for inventors to come to you.
When companies ask employees what they’re working on in hopes of identifying inventions, women, first-time inventors and members of other underrepresented groups tend to fare better than when they have to approach their company about their invention, according to Santa Clara law professor Colleen V. Chien. When asking who has an idea in a classroom, she said students often self-censure, internally asking questions like: “Should I raise my hand? Do I actually have something to add? Am I actually a person who has interesting insight?” That thought process repeats when deciding whether to file for a patent, Chien said. “We know from the classroom that there are quiet people who may not raise their hand who actually have really good ideas, and those who raise their hand all the time may not be the ones who have all the good ideas out there,” Chien said. “One way to change that is rather than asking the question, ‘Who has an idea to share?’ we can go around and put on panels and say, ‘Well, what are you working on?'” COVID-19 created a natural way to test this idea, Chien said. In companies that used an opt-out process normally, but then switched to an opt-in inventor portal when going remote, there was a “pretty deep decline” in underrepresented groups’ participation.
2. Make diversity efforts accessible and expandable.
Bismarck Myrick, director of the USPTO’s Office of Equal Employment Opportunity and Diversity, said that when he first started working in that office, his job focused mostly on processing complaints about discrimination, while also being assigned to take on diversity and inclusion. “One day I got into an elevator, and there was a manager there who recoiled and said, ‘What did I do wrong?’ Just by me getting on the elevator,” Myrick said. “I thought that the person who’s responsible for the diversity and inclusion function at an organization cannot be thought of as being the person who you are the most scared of seeing.” Diversity efforts had stalled out at the agency when patent examiners were told to focus on the backlog of unexamined patent applications, so Myrick aimed to find a way to set up a program that didn’t impact the rate of examination and didn’t cost money, leading to a pilot affinity group. The USPTO set up an alumni chapter of the National Society of Black Engineers, and soon after, there was interest in setting up a similar group for Hispanic engineers, Myrick said. Now, the agency has 30 affinity groups along with 10 interest-based groups for employees. These groups have had a real impact on the agency, with Myrick noting that when examiners were being recruited from Puerto Rico, members of the Society of Hispanic Professional Engineers’ USPTO chapter would meet them at the airport, help them find places to live and otherwise get situated. In another example, he pointed to a group of Ethiopian employees, who filled up the agency’s largest auditorium with members of their community who wanted to learn about protecting their intellectual property. Through involvement in these groups, Chien noted, there was a steep increase in employees staying on through their probationary period.
3. Support new inventors.
When trying to figure out why there was a gender gap in patenting, the USPTO launched a clinical-study-style pilot in 2014 to randomly assign pro se inventors to either a standard examiner, or one specifically trained to work with pro se inventors, said the agency’s chief economist, Andrew Toole. The agency saw that women filing for the first time were mostly from small entities and micro-entities, and thought the program would provide a boost. The results of the pilot program were dramatic, Toole said, closing the gender gap completely. “It’s not inevitable that first-time applicants need to be disadvantaged in our processes,” said Stanford University professor Heidi Williams. “There’s actually interventions that show clear evidence that we can help with bringing new people into the system.” Later in the conference, USPTO Director Kathi Vidal said the agency is hoping to focus its pilots and other programs on more than women, but noted that women were “the easiest thing to measure.” “It didn’t make sense to do all of them at once,” Vidal said. “It made sense [to] start one strong, and then use that as a model for other ones, which we fully intend to do.” –Editing by Robert Rudinger.
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