Decades until 'needle moves' on women-led patent trials

Data shows slow progress since 2010 | Women unlikely to be selected as first chairs for certain cases.

At the present rate of progress, it will take women at least 60 years to achieve gender parity as lead trial counsel (first chairs) in patent trials, according to a new report from a former patent lawyer.

According to  “Women's Struggle to Become First Chair Trial Lawyers in Patent Cases: Lots of Talk But Little Progress”, the share of first chairs over the past ten years has “barely moved”, despite the increased attention on  gender disparities across the legal profession.

Using  Lex Machina data, the report noted that in 2010, women comprised 8.1% of first chairs at trial in patent cases. In 2019, women comprised 9.8% of first chairs. According to the report, there were 247 lead trial counsel opportunities in 2010 and 143 such opportunities in 2019.

Patricia Martone, affiliate fellow at the  Engelberg Center on Innovation Law & Policy at  New York University School of Law, wrote the report.

She spent more than 45 years as a practising attorney and, during her career, was the first chair in more than 45 cases.

Needle ‘not moving’

“From everything I heard or read, despite the public attention to gender disparity in law firms and in the courtroom, the needle of women’s service as first chairs, in litigation generally and in patent litigation specifically, was not moving,” said Martone, in the introduction to the report.

The report also found that in 2010 and 2019, women were significantly underrepresented in the category of first chairs handling jury trials.

“Because jury trials are preferred in most types of patent litigation, this trend suggests a limit on women’s opportunities to serve as first chairs,” said the report.

In the 2019 trials, women tended to litigate patents in the life sciences area and not in the other technologies that were the subject of patent trials.

“Although most of the women first chairs in that year have undergraduate degrees in biology or chemistry, the women I interviewed discounted this credential as significant to clients. This issue of whether women are being held to a different standard as compared to men deserves further attention,” said the report.

It added: “If a lawyer’s undergraduate degree is of more significance to clients or firms for women as compared to men, the fact that the most popular undergraduate degree for women in STEM is life sciences, suggests that fewer women are likely to be selected as first chairs for cases involving technologies such as electronics, semiconductors, telecommunications or computers. This would be another limit on women’s opportunities.”

Path forward

The report concluded with a chapter on the path forward, providing suggestions on actions that could be taken by law firms and equity partners to improve diversity and inclusion (D&I) in the legal profession.

“Reluctance by equity partners to participate in D&I activities is the death knell to achieving diversity, equity and inclusion,” said the report, adding that equity partners “clearly constitute the foundation for any meaningful D&I effort”.

Martone suggested that D&I efforts must affect partner compensation in a meaningful way, noting that “there will be no meaningful movement forward unless partners’ pay is determined in part on their participation and performance in D&I activities”.

The report recommended other steps such as mentoring and training, policies that mitigate the tendency of partners to work with the same associates all the time, and flexibility concerning billable hours requirements.