Diversity and Inclusion in Patent Law

Title: Diversity and Inclusion in Patent Law
Feature Article by Caroline Funk, PhD, Associate Director, The Baldy Center for Law and Social Policy
Keywords: diversity and inclusion, racial bias, gender bias, patent law, government reform, social justice and social change.

Semet’s work relates directly to all of the complex or simple things around you that are protected by patents: everything from the dynamic programming in your smart devices to the design of your phone case can be patented. Unless we are inventors ourselves, we probably do not think enough about how this works, why some things are patented and some are not, who benefits from patents, and who is cut out of the process unfairly – and how that happens. Semet is thinking about these things, and she is working to empirically identify factors that impact the process.

In Semet's opinion, patent law is one area where empirics can yield insights into how institutions and policies can be reformed. In her 2019 Boston College Law Review article, Semet studied empirically how district court judges make decisions in patent cases, analyzing whether certain judges participating in a pilot program of specialized judges were less likely to be reversed on appeal. Her recent research, funded in part by The Baldy Center, continues looking at how federal courts and the PTAB make decisions in patent law cases. Semet has created databases of decisions by the federal court and the PTAB. She hopes to explore the factors animating how judges make decisions. In the past, she has considered variables including the technology of the claimed invention, the procedural posture of the case (such as whether it was being heard by a jury or on a motion), how complex the case and the patented technology was, the demographics of the judge (such as whether they had specialized expertise), the parties involved in the case (such as whether one or more of the parties was a non-practicing entity) as well as other factors (such as the year, the location of the court, and other factors).

Now, Semet is expanding her research to include variables such as gender and race to learn how they can impact decisions. Historically, the USPTO has not kept records of the gender and race of each patentee, and this has impacted research since there was little way to properly analyze the role that gender and race play in the patent system. The USPTO, however, recently created a database classifying the gender of the inventors of patents using statistics which Semet hopes to use in her own research. Using new name search techniques, the USPTO was able to attempt to classify the gender of the patentees historically, even though these data were not gathered when the applicants filled out their applications years ago.

The goal of Semet’s work is, again, reform. She believes that the goal any patent reform is to increase certainty and efficiency in patent law as well as to encourage innovation. Her expanded research includes the possibility for reforms that specifically address a bias free, equal and just patent system for women and underrepresented minorities and for innovators more generally.

Analyzing reform of the patent system is all the more important given that this year marks the ten year anniversary of the American Invents Act (AIA). Among other reforms, the AIA reformed the administrative machinery of the patent adjudicatory system, creating the PTAB as an alternative to district court litigation on some aspects of patent law. Controversy has swirled about the PTAB since its existence, with the Supreme Court making several decisions in the last few years concerning its constitutionality and practices. Analyzing how the PTAB works, as well as how its decisions compare with those of the federal courts, is important for understanding how to reform patent law going forward.