By William H. Honaker
The U.S. Patent and Trademark Office (USPTO) recently issued its report, "Progress and Potential: 2020 Update on U.S. Women Inventor Patentees." The report opens with key findings and the first is: "More women are entering and staying active in the patent system than ever before."
Sounds great, but it is misleading; the results are not that good. The "Women Inventor Rate" (WIR) i.e., the share of U.S. inventors receiving patents who are women, increased only 0.7% in three years, from 12.1% to 12.8%. There is something wrong when only 12.8% of patentees are women. Stated another way, men are getting almost 90% of all patents. Why is that?
Of course, there are many significant women inventors and inventions. I have always been intrigued by Hedy Lamarr and her invention for controlling torpedoes. Hedy Lamarr was a famous Hollywood actress whose acting career spanned the 1930s through the 1950s. Louis B. Mayer, the head of MGM studios promoted her as the "world's most beautiful woman."
Her invention involved frequency shifting to protect signals from being jammed when sent to torpedoes. Her advances in communication technology led to today's WI-FI, GPS, Bluetooth and cellphones. It took decades before she was recognized for her invention.
Others I find interesting are Mary Anderson's invention of windshield wipers; Katherine Burr Blodgett's invention of non-reflective glass, which is used in camera lenses, microscopes, and eyeglasses; Grace Murray Hopper's work with computer software; Stephanie Kwolek's invention of Kevlar; and Patricia Bath's invention for laser cataract surgery. There are many others, yet as great as these inventors and inventions are, there is very little awareness of their contributions.
Although anecdotal, my own experience of more than 35 years practicing patent law confirms the USPTO's findings. As a former Patent Office examiner, I cannot recall a single woman inventor. As a practicing attorney, I have only represented a handful of women inventors, and most of them were in large companies with big research budgets. In my opinion, the report's numbers are likely masking an even more troubling statistic. Women entrepreneurs and women in small businesses may have even lower numbers.
Why are Women
so Underrepresented?
The Hamilton Project's 2017 report, "Eleven Factors About Innovation and Patents," states that, "Women are underrepresented throughout the innovation pipeline."
- 57% of women get a Bachelor of Science degree.
- 35% of those are in STEM (Science, Technology, Engineering and Math) programs.
- 22% of the STEM students enter the workforce.
- 90% of patent holders have at least a bachelor's degree.
Women have outpaced men in obtaining bachelor's degrees for 40 years, and recently outpaced men in the workforce for workers with bachelor's degrees. Frankly, the numbers just do not add up.
Reasons abound as to why women are not getting patents. Many point to the lack of STEM education, and others to the low numbers of women engineers. The Society of Women Engineers reported in November 2019 that only 13% of women are engineers, and only 30% of those are still in engineering 20 years later. One third of those cite organizational climate as the reason for leaving.
Is organizational climate also behind women not getting recognized? I suspect it is. In some businesses, deciding who to name as an inventor can be arbitrary and political. But the decision is a legal question and gives every woman a valuable tool to ensure their inclusion.
U.S. Patent Law Requires that True Inventors be Named
U.S. patent laws require that a patent list the true inventors. If it doesn't, it has to be corrected, or the patent can be invalidated and lost. There are huge risks in playing games with naming inventors. A valuable patent could become worthless. This is the leverage women have. They should remind those involved in listing the inventors of their involvement and the absolute requirement that all inventors be named. No one wants to risk leaving an inventor off of a patent.
How Do You Know If You Should Be Named as an Inventor?
The determination of who is an inventor is complicated, but here is a simple way to think about it: whoever figured out the complete invention (this can be multiple people) as stated in any claim (this can be a small part of the entire invention) and did not need to experiment or consult experts.
If one contributed even a small part to the invention in any claim, or a small part of the overall invention, that person could be classified as an inventor. The ultimate answer is complicated and will likely be determined by a patent attorney. However, women need to let the attorney know how they contributed so that a proper decision can be made. The attorney will make the ultimate decision based on the facts and the law-and not possible ulterior motives like organizational climate.
The Takeaway
More women should be patentees and assert their rights to patent protection. Women, if you are an inventor, you are entitled (required even) by law to be named. Any sensible business wants rightful inventors listed to avoid the risk of losing valuable patent rights. If you think you should be listed as an inventor, the law is on your side. If there is any support for you being named, prudent decision makers will have you added, regardless of the organizational environment. Use your patent law leverage to be certain the right thing is done.
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William Honaker is a member partner in the Troy office of Dickinson Wright. With more than 35 years of experience as an intellectual property attorney, he helps businesses protect their brands, inventions, and copyrights.
