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“That ladies are additionally under-represented in different sorts of patent regulation doesn’t imply that they’re adequately represented within the ITC. Reasonably, such an argument solely underscores that the issue is bigger than the ITC, impacting patent regulation as a complete in addition to the career at massive.”
For the second yr in a row, we pulled and analyzed knowledge on the variety of girls who appeared in Worldwide Commerce Fee (ITC) investigations. This yr’s knowledge confirms what we noticed final yr: that ladies are underrepresented on the ITC. Whereas research shows girls make up about 50% of the population, 50% of associates, and 39% of the profession typically, they solely made up 27% of the ITC advocates in each 2022 and 2023. The distinction in years of expertise between female and male advocates is even starker, with males having on common practically 7 extra years of expertise than girls. This yr’s statistics are examined intimately under and in comparison with what we present in our article printed final yr.
The ITC is an impartial, quasi-judicial company empowered to adjudicate unfair commerce practices, together with patent infringement. The ITC’s main treatment is exclusion of infringing merchandise on the border, which means an organization discovered to infringe can’t convey its merchandise into the US to be offered to clients. This highly effective treatment makes the ITC a preferred venue for patent house owners and pushes corporations accused of infringing to rent solely probably the most skilled ITC practitioners.
In 2023, patent house owners filed 36 complaints within the ITC underneath 19 U.S.C. § 1337. To run our statistics, we used the identical course of as final yr. We first recognized the names of all attorneys who entered appearances and/or entered protecting order undertakings. We entered every identify right into a spreadsheet, then searched every lawyer to seek out their regulation agency bios, from which we decided their years of expertise based mostly on regulation college commencement yr. We recorded every lawyer’s obvious gender, variety of years of expertise, and associate or different equal titles. For the needs of this text, we have now used our greatest judgment to find out the popular gender of every lawyer who appeared in an ITC Investigation final yr based mostly on bio pronoun use.
Roughly 1,019 attorneys appeared within the 36 Part 337 Investigations. Some attorneys appeared as counsel in multiple Investigation. In these situations, we counted appearances in several Investigations individually. In different phrases, some attorneys are counted a number of occasions in the event that they appeared in a number of Investigations, though as mentioned, we additionally ran evaluation on distinctive attorneys. For many of the few attorneys whose regulation agency bios we couldn’t discover, we crammed within the data utilizing public sources like LinkedIn profiles. For the few that we couldn’t discover both a regulation agency or public knowledge indicating degree of expertise, we included them within the gender knowledge, however excluded them from our calculations of expertise degree. On condition that there are comparatively few attorneys whose degree of expertise we couldn’t discover (2 girls and 15 males), the affect on the info is minimal. There have been two attorneys with none web presence to point gender or expertise, who we excluded from the info totally.
Of the 1,019 attorneys who appeared in Part 337 Investigations in 2023, 276, or roughly 27%, are girls. This proportion is almost equivalent to final yr’s knowledge at 27.4%. The truth that 2023 noticed fewer ITC filings at 36 filings in comparison with 2022 at 67 filings must be thought of. Regardless, the share of ladies appearances in patent-related Investigations stays under the nationwide common for ladies attorneys typically in 2023. The American Bar Affiliation reports that in 2023, 39% of legal professionals are girls.
We acquired a stunning quantity of backlash to final yr’s article. Our comparability of ladies on the ITC to girls within the career typically was one of the crucial frequent gripes. Commenters argued that ITC legal professionals shouldn’t be in comparison with the career typically as a result of girls make up a smaller proportion of legal professionals in patent regulation than in different observe areas. Whereas true, it does nothing to deal with the problem. That ladies are additionally under-represented in different sorts of patent regulation doesn’t imply that they’re adequately represented within the ITC. Reasonably, such an argument solely underscores that the issue is bigger than the ITC, impacting patent regulation as a complete in addition to the career at massive.
As we did final yr, we additionally examined the typical years of expertise for ladies and men who appeared in patent-related Investigations in 2023. The chart under illustrates that the skew in ranges of expertise that we noticed in 2022 continued in 2023.
For 2023, the typical variety of years that males have practiced is 17, in comparison with roughly 10.5 years for ladies. Apparently, this can be a one-year enhance in common expertise degree for each women and men from 2022 to 2023, hopefully demonstrating a development that youthful feminine attorneys stayed of their ITC observe from final yr to this yr. The chart above, nonetheless, reveals that 1 to three years of expertise stays the best inhabitants for ladies by far, whereas the extent of expertise for males stays extra fixed. We noticed the identical common development last year.
We additionally compiled the variety of female and male companions or equal title and in contrast that to the variety of female and male associates or equal. General, companions made up an even bigger proportion of the overall variety of attorneys in 2023 (57%) in comparison with 2022 (50%). The proportion of feminine companions elevated by 9% and the proportion of male companions elevated by 7% over 2022. As proven within the pie chart under, nonetheless, solely about 11% of the overall lawyer appearances in 2023 are feminine companions, whereas 46% are male companions, which means girls companions make up solely 20% of all companions who’ve appeared in Part 337 investigations. That is decrease than the national average percent of women partners at law firms, 27.8% non-equity and 23.7% fairness.
Given the ITC’s strict confidentiality insurance policies, it could have been troublesome to precisely tabulate the variety of girls with talking roles at ITC hearings. The degrees of expertise mentioned above, nonetheless, point out a probability that males make up a disproportionate share of the variety of attorneys arguing and taking witnesses as effectively. That is comprehensible, as shoppers put strain on regulation corporations to verify solely skilled attorneys have talking roles. This underscores the significance of maintaining girls in an ITC observe past their third yr and even their eighth, the place our knowledge reveals two drop offs within the variety of girls.
The gender disparity is additional emphasised within the variety of girls who’re designated lead counsel. Of the 112 attorneys coming into an look as lead counsel, solely 13 had been girls or 12%. That is about the identical as final yr, 264 girls as lead attorneys or 11%. In a 2020 survey of over 100 intellectual property trials, 24% of lead attorneys had been girls, double the illustration on the ITC.
Once more, in response to feedback we acquired about evaluating the info to the career as a complete moderately than patent regulation, it’s informative to take a look at the p.c of ladies in patent regulation within the public-sector jobs. Men and women current oral argument on behalf of the federal government earlier than the Federal Circuit at virtually equal proportions (48.4% and 51.6%, respectively). Paul R. Gugliuzza & Rachel Rebouche, Gender Inequality in Patent Litigation, 100 N.C. L. Rev. 1683, 1712. Equally, women and men are higher represented on the ITC in Employees Legal professional (OUII) positions. In 2023, girls comprised 55% of all ITC Employees Attorneys. Even evaluating superior workers roles (director and supervisory attorneys), 50% are held by girls. ITC Employees Attorneys on common have 20.2 years of expertise, 10 years greater than the typical private-sector advocate. Girls are additionally higher represented in choose positions. 30% of the PTAB’s judges, 34% of the Federal Courts of Appeals, and practically half of the Federal Circuit’s energetic judges are girls. Id. at 1692, 1707, 1727. On the ITC, three of the six ALJs are girls, but the bar showing earlier than them is predominately males.
The 2023 knowledge mentioned above reveals little to no distinction over the info from final yr, aside from the additional one yr of expertise seen throughout girls on the ITC on common. The authors hope this can be a development that can proceed in coming years, demonstrating that ladies are sticking with their ITC observe. We’ll run the numbers subsequent yr and allow you to know.
Particular because of Courtney Keaton who for the second yr in a row performed an integral half in compiling the info. We couldn’t have written this text with out her.
Picture Supply: Deposit Images
Writer: billperry
Picture ID: 18479953
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