Empirical Study of Appellate Patent Litigation Reveals Ongoing Racial and Gender Disparities of Lawyers

Paul Gugliuzza, Rachel Rebouche & Jordana Goodman, Inequality on Appeal: The Intersection of Race and Gender in Patent Litigation  

Today, roughly 40% of lawyers are women, 15% are persons of color, and 8% are women of color. Yet people of color, and women of all races, rarely climb to the most elite levels of law practice. This article, based on an original, hand-coded dataset of the gender and race of thousands of lawyers and case outcomes, provides a stark illustration of on-going racial and gender disparities, focusing on the high-stakes world of appellate patent litigation.

All appeals in patent cases nationwide are heard by the U.S. Court of Appeals for the Federal Circuit, a court that is itself quite diverse: out of twelve active judges, five are women and four are persons of color, two of whom are women of color. But, out of 6,000-plus oral arguments presented to the Federal Circuit in patent cases from 2010 through 2019, a staggering 93% were delivered by white attorneys. Barely 2% were by Black or Hispanic/Latino attorneys. Adding in data about gender, white male attorneys alone argued 82% of patent cases during the decade we studied. Women of color, by contrast, argued fewer than 2%.

Crucially, those disparities bear no relation to attorney performance. Appellants in Federal Circuit patent cases win about a quarter of the time and appellees win about three-quarters of the time—with no correlation based on race, gender, or the intersection of the two. The one cohort of lawyers in our study that does win more frequently is a small group of lawyers at large law firms who argue Federal Circuit patent appeals more frequently than anyone else. That group of roughly 65 lawyers is, like our dataset overall, overwhelmingly white and male.

In general, our study tells a dispiriting story: despite increasing diversity among law students and lawyers, and no connection between a lawyer’s gender or race and case outcomes, a lack of diversity persists at the legal profession’s highest levels. However, we identify discrete areas of patent practice where women, people of color, and women of color are more visible—most notably, in representing the federal government (as opposed to private-sector clients) in patent appeals. Those findings provide a foundation for ideas to make the patent system, and high-level law practice generally, more diverse and inclusive.