Inequality and Intersectionality at the Federal Circuit

By: Paul Gugliuzza is a Professor of Law at Temple University Beasley School of Law, Jordana R. Goodman is an Assistant Professor of Law at Chicago-Kent College of Law and an innovator in residence at the Massachusetts Institute of Technology, and Rachel Rebouché is the Dean and the Peter J. Liacouras Professor of Law at Temple University Beasley School of Law.

(This post is part of a series by the Diversity Pilots Initiative, which advances inclusive innovation through rigorous research. The first blog in the series is here and resources from the first conference of the initiative are available here.)

The ongoing reckonings with systemic racism and sexism in the United States might seem, on first glance, to have little to do with patent law. Yet scholarship on racial and gender inequality in the patent system is growing. Recent research has, for example, shown that women and people of color are underrepresented among patent-seeking inventors and among lawyers and agents at the PTO. In addition, scholars have explored racist and sexist norms baked into the content of patent law itself.

In a new article, we empirically examine racial and gender inequality in what is perhaps the highest-stakes area of patent law practice: appellate oral argument at the Federal Circuit.

Unlike many prior studies of inequality in the patent system, which look at race or gender in isolation, our article looks at race and gender in combination. The intersectional approach we deploy leads to several new insights that, we think, highlight the importance of getting beyond “single-axis categorizations of identity”—a point Kimberlé Crenshaw made when introducing the concept of intersectionality three decades ago.

The dataset we hand built and hand coded for our study includes information about the race and gender of over 2,500 attorneys who presented oral argument in a Federal Circuit patent case from 2010 through 2019—roughly 6,000 arguments in total. Our dataset is unique not only because it contains information about both race and gender but also because it includes information about case outcomes, which allows us to assess whether certain cohorts of attorneys win or lose more frequently at the Federal Circuit.

Perhaps unsurprisingly, we find that the bar arguing patent appeals at the Federal Circuit is overwhelmingly white, male, and white + male, as indicated in the figure below, which breaks down, in a variety of ways, the gender and race of the lawyers who argued Federal Circuit patent cases during the decade covered by our study. (Note that the figures report the total number of arguments delivered by lawyers in each demographic category. Note also that the number of arguments we were able to code for the race of the arguing lawyer was slightly smaller than the number of arguments we were able to code for the gender of the arguing lawyer, so the total number of arguments reported on the figures differ slightly.)

Federal Circuit Patent Case Oral Arguments, 2010-2019

What is surprising, however, is that the racial and gender disparities illustrated above dwindle when we look only at arguments by lawyers appearing on behalf of the government, as shown in the figure below, which limits our data only to arguments by government lawyers. (About 75% of those government arguments were by lawyers from the PTO Solicitor’s Office; the others came from a variety of agencies, including the ITC and various components of the DOJ.)

Federal Circuit Patent Case Oral Arguments, 2010-2019 – Government Lawyers Only

In fact, among lawyers appearing on behalf of the government, the proportion of arguments by women, people of color, and women of color exceeded the proportion of women, people of color, and women of color in the total population of practicing lawyers—that is, all lawyers, not just patent lawyers. Among private sector patent lawyers, by contrast, the proportion of arguments by women, people of color, and women of color was much lower than the proportion of women, people of color, and women of color in the total population of lawyers, as shown in the table below.

To restate those findings in a slightly different fashion: we find that, among lawyers arguing patent cases at the Federal Circuit, a government lawyer is 2.3 times more likely than a private-sector lawyer to be a person of color, over 5 times more likely to be a woman, and over 10 times more likely to be a woman of color.

Remarkably, the racial and gender disparities we find—particularly among Federal Circuit lawyers from the private sector—bear no relation to attorney performance. As we explain at length in our article, appellants in Federal Circuit patent cases win about a quarter of the time and appellees win about three-quarters of the time—with no significant differences based on race, gender, or the intersection of the two.

There is, however, one group of lawyers who do win more frequently than all others: a small group of 65 private-sector lawyers who argue patent cases at the Federal Circuit more than anyone else—on average, at least once a year. When seeking to overturn a judgment of a district court, the PTO, or the ITC in a patent case, those frequent Federal Circuit advocates succeed 41% of the time, as compared to a 24% win rate for the other private-sector lawyers in our dataset. That finding adds a patent-law angle to a growing literature documenting the remarkable influence a small group of specialist appellate litigators (mostly white and male, and almost all at the wealthiest, most prestigious law firms in the world) have had on the U.S. legal system.

We conclude our article with some ideas about how to make the patent system, and high-level law practice generally, more diverse and inclusive. In the main, we think our findings about the large proportion of women, people of color, and women of color arguing patent appeals for the government undercuts the oft-mentioned “pipeline” explanation for a lack of diversity in patent law—that is, the idea that women and people of color are absent because they lack scientific or technical backgrounds.

Not only is that explanation based on outmoded conceptions of what patent practice entails—especially patent litigation—our data suggest there are women, people of color, and women of color arguing patent cases at the highest level—they are just not getting many opportunities to do so in law firm practice. Indeed, though the number of government arguments in our dataset (567) is less than one-tenth the number of arguments by private-sector lawyers (5825), the government had a greater number of arguments presented by women of color (65) than the private sector did (60).

The inequalities we find among private-sector patent lawyers, and the lack of correlation between those inequalities and case outcomes, suggest that entry into the upper echelon of patent practice is about more than winning and losing in the courtroom. As a recent ABA report on “interrupting bias” suggests, to really make progress with race and gender equity, we must focus on the structural causes of disadvantage and exclusion. For instance, law firms can use concrete, objective metrics to track the effects of diversity efforts, to ensure promoting diversity is rewarded in performance reviews, and to ensure no demographic group is being treated differently in assignments, evaluation, and compensation.

In short, broadening the population of lawyers who make it to very top of appellate practice will require a more deliberate approach than “add diversity and stir”; it will require disrupting the rules and norms that exclude and undermine outsiders to the status quo.

Three main takeaways:

  1. Racial and Gender Disparities in Patent Law Practice: The study highlights that the demographic of attorneys arguing patent appeals at the Federal Circuit is predominantly white and male. This disparity is evident when compared to the total population of practicing lawyers. However, an interesting contrast is observed in government lawyers, where the proportion of arguments by women, people of color, and women of color exceeds their proportion in the overall lawyer population.
  2. No Difference Between Attorney Demographics and Case Outcomes: Despite the noted disparities in racial and gender representation, these factors do not correlate with the success rates in court. The data indicates that appellants in Federal Circuit patent cases win roughly a quarter of the time and appellees three-quarters of the time, irrespective of the attorney’s race, gender, or their intersection.
  3. Need for Structural Changes to Enhance Diversity: The post concludes that the disparities in private-sector patent law practice and the absence of correlation with case outcomes point to a need for more than just increasing diversity. There is a call for addressing structural causes of disadvantage and exclusion in the legal profession. This includes implementing concrete measures in law firms to track and promote diversity, ensuring fair treatment in assignments, evaluations, and compensation, and disrupting norms that perpetuate the status quo, thereby broadening the population of lawyers in top appellate practice.

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