Thursday, December 1, 2022
Paul Gugliuzza & Rachel Rebouche, Gender Inequality in Patent Litigation, 100 N.C. L. Rev. 1683 (2022)
This Article presents an empirical study of gender diversity—or, more accurately, the lack thereof—among the lawyers who handle patent cases in the federal courts, focusing on appellate litigation at the Federal Circuit and the Supreme Court. Drawing on two original datasets, the Article finds that, over the past decade, 87.4% of oral arguments in patent appeals at the Federal Circuit have been presented by men. The numbers are similar at the Supreme Court: over the past thirty years, more than 90% of arguments in patent cases have been delivered by male attorneys.
The typical explanation for these sorts of gender gaps is that men are disproportionality represented in the science and technology fields that underlie patent practice. But a closer look at the numbers shows that gender parity exists in specific areas of patent litigation. Until a recent retirement, half of the Federal Circuit’s twelve active judges were women, and the women on the court tend to have more pre-appointment experience in patent law than their male counterparts. In addition, the data collected for this study demonstrate that, when the government becomes involved in patent litigation (usually because a case involves the Patent and Trademark Office), women present oral argument at the Federal Circuit 48.5% of the time—more than five times as frequently as the rate for private-sector litigants.
The story this Article tells—of women being largely absent from high-level patent litigation—is actually a story about gender inequality among the lawyers hired by large corporations, particularly the Federal Circuit’s most frequent litigants, including Apple, Amazon, Google, and Samsung, all of which have been represented by women in less than 15% of their arguments over the past decade.
Figuring out why women rarely litigate patent appeals for private-sector clients is challenging, but the disparity between law firms and the government parallels inequalities in law practice more generally. To that end, this Article suggests both small steps that would increase gender balance among the lawyers arguing patent cases as well as broader structural reforms that would improve diversity across the bar.