EPISODE TWENTY-FIVE | THE MANSFIELD RULE
EPISODE TWENTY-FIVE | THE MANSFIELD RULE
Harrity’s Elaine Spector helped prepare comments, on behalf of IPO, submitted to the Supreme Court of Florida in response an order issued on April 15 regarding a recently adopted policy regulating the composition of faculty at section-sponsored continuing legal education (CLE) programs. The Court noted that “quotas based on characteristics like the ones in this policy are antithetical to basic American principles of nondiscrimination.”
IPO’s comments, which were prepared with assistance by several additional members of IPO’s Diversity & Inclusion and Women in IP Committees, noted four main issues: 1) A rule requiring a minimum number of diverse panelists advances diversity and the quality of programming with no evidence of harm; 2) the Court fails to offer any guidance on permitted diversity policies moving forward; 3) the order could have a chilling effect on addressing current structural and ongoing inequity; and 4) sua sponte revision of the rule, without notice, will cause harm to Florida attorneys and diversity of the Florida Bar
Read the full response below.In-The-Supreme-Court-of-Florida-Comments
EPISODE TWENTY FOUR | DIVERSITY METRICS
Harrity’s LaTia Brand & Elaine Spector’s research regarding the the gender gap and lack of diversity in the field of patent law, specifically as it pertains to women in the space, was quoted in a recent IP Watchdog Article, On Tiffany Cunningham’s Appointment to the CAFC: An Impeccable Candidate and a Rallying Call for More Diversity in IP.
Cunningham is the first African-American, and therefore first African-American woman, to join the Federal Circuit bench. “Although a cause for celebration, this momentous occasion should not be wasted in self-congratulation but rather should provide momentum for further public and private efforts to increase diversity at the most senior echelons of the IP bar. Without a ready supply of diverse and qualified candidates, we remain in danger of this important ‘first’ becoming a ‘last.'”
Read the full article on IPWatchdog.com.
EPISODE TWENTY THREE | MARYLAND LEGAL EDUCATION SUCCESS COLLABORATIVE
EPISODE TWENTY TWO | PRIDE MONTH
To see more tips for achieving patent quality, visit our Practical Patents page.
Welcome to another episode of Tech Transfer IP. Today I am pleased to speak with Elaine Spector. Elaine is a patent attorney with Harrity & Harrity with over twenty year’s experience in intellectual property law. Elaine’s current practice consists primarily of prosecuting patent applications with a focus on electromechanical technologies.
Before joining Harrity & Harrity, Elaine worked in private practice for over fifteen years handling various intellectual property matters, including patent application drafting and prosecution, trademark prosecution and enforcement and litigating complex patent cases in federal courts. Her extensive litigation experience provides her with a unique perspective in prosecuting patent applications.
Listen as Elaine shares some key differences between working in a University Tech Transfer office and working in a law firm. She also talks about the Rooney Rule and how Hannity has improved it by making it Rooney Rule 2.0, and how the Rooney Rule is different from the Mansfield Rule.
Elaine discusses her company’s rigorous hiring process to remove bias, the factors that contribute to the problem of having a small amount of diverse individuals in the legal profession, and the programs her office has launched to help bring more women into her firm, like the Annual Women’s Patent Law Workshop and the Minority Firm Incubator Program to name a few.
Elaine shares some suggestions for small firms that might struggle to develop diversity and inclusion procedures, standards, and programs. She says that reaching out is one action step patent professionals can take to improve diversity for the Patent Bar.
In This Episode:
EPISODE TWENTY ONE | FLORIDA CLE REGULATIONS CONTINUED
EPISODE TWENTY | THE IDEA ACT
Questions covered in this discussion include:
You can watch the full session below.
You can watch the recording, which shares various perspectives and stories to help and empower law firms to move the needle towards increasing Diversity and Inclusion in a significant way, below.
EPISODE NINETEEN | ARE CLE PROGRAMS DISCRIMINATORY?
EPISODE EIGHTEEN | SIMPLE STRATEGIES FOR ENGAGING DIVERSE INVENTORS
EPISODE SEVENTEEN | GENDER DIVERSITY
EPISODE SIXTEEN | BLACK INVENTORS
Women have been advocating for change with regard to work/life flexibility for years. For decades, choices for women starting a family while working in a law firm setting have been limited: either return to work full-time to stay on the partnership track or return to work part-time and be put on the dreaded “mommy track.” Women in partner roles would often return to work within days of giving birth. That is just how things have always been, the model many women had no choice but to follow. So, it is no surprise that many women, myself included, defaulted to the “mommy track,” or worse yet, left the practice of law entirely.
In addition to a lack of flexibility regarding part-time work, law firms have been reluctant to allow flexibility with regard to remote work. Often, law firms equate lawyers who want to work remotely with a lack of commitment. As such, if a law firm actually agreed to a remote work arrangement, the lawyer working remotely would be taken off the partnership track.
While the pandemic has been a struggle across the world, a lot of women are quietly cheering from their homes. Finally, our employers are forced to allow us to work remotely, and now they see that we can work well at home. In fact, for some of us, working at home is where we shine. We are happy, less stressed, and feel some sense of control and balance. At least, that is the way I feel.
I began working remotely a few years before the pandemic hit. My firm allows for any lawyer at the firm, regardless of the numbers of hours they work or whether they show the requisite face time in the office, to make partner. And I did. Remotely. Working part-time hours. Many of my female colleagues at other firms have reached out to me to ask, “How can we keep the remote work going?” “How do we continue to develop relationships and culture within our firm?” and “Can someone make partner while working remotely?”
As offices begin opening back up, I encourage law firms to look at this time as an opportunity to re-evaluate their outdated policies regarding remote work. Despite the physical separation, you can build a firm culture focused on nurturing relationships. Relationship building is the core of culture, inclusion, and ultimately, success at your firm. Here are five tips to improve your firm culture while working remotely.
It is critical to continue to build relationships in the remote work environment. How do we replicate water cooler conversations? One way is to require leadership to meet weekly or biweekly with both lawyers and support staff via a video call. This type of face-to-face interaction is so much more engaging than a telephone call, as we have all experienced over the past year. When holding the call, talk about your life to whatever extent you feel comfortable sharing, just as you would at the water cooler. Set up a rotation within the firm, so that leadership is meeting with different individuals throughout the year and be sure to mix it up from those who typically work closely together. This personal connection, untied to any pressing work matters, will transform your internal relationships.
Get in the habit of holding monthly firm meetings, which include both lawyers and support staff. The firm meeting is a great place to talk about your shared vision, to highlight people who have done exceptional work that particular month, and to address any issues that might need attention. The firm meeting is also an opportunity to get to know each other. Have a few employees present about their families/backgrounds, or cultural holidays and celebrations. The days of keeping your family and work life separate are over! An appropriate overlap, where employees feel the firm knows what is important to them, will make everyone feel more comfortable and supported in the workplace.
A game changer at our firm was when one of my colleagues suggested forming committees focused on firm goals, such as diversity, employee relations, recruiting, automation, and new client development. These committees perform optimally when the majority employees of the firm participate in at least one committee. It is important to firm culture and work satisfaction that everyone at your firm has a voice, which also inspires innovation and progress. The committee work furthers important objectives at your firm, while forging important relationships among your employees as they work together to create and implement new initiatives and reach common goals.
A virtual book club is yet another way to build relationships among employees of your firm. The topics can range from fiction, to self-help, to business-oriented books. A book club allows support and professional staff yet another way to get to know each other on a personal level, which is important for firm culture. Participants can grow better through sharing their perceptions of what was read and have a better sense of camaraderie. When employees feel seen and valued, the work environment becomes so much more effective and fulfilling.
It is important to replicate face-to-face meetings as much as we can. These interactions are crucial to developing meaningful relationships. Face-to-face meetings allow you to see expressions on your colleagues’ faces and talk on a more personal level to allow for a more understanding culture. Make it a policy at your firm, that when you would ordinarily walk into someone’s office, to instead, make a quick Zoom or Teams call with video always on. After all, you wouldn’t force your colleague to speak to you through a closed door in the office – why make them talk to a blank screen? Again, virtual face-to-face meetings are integral to developing a highly effective, remote working environment.
It is far past time to shift perspectives from the old rigid mindset to embracing a more diverse work force. One where we, as women, don’t have to give up the important job of raising our children, while also providing top quality service to our clients. In addition, lawyers should not be excluded from partnership because they work remotely or prefer to work a reduced schedule. An attorney can contribute just as much to the success and advancement of the firm, its culture, and its future without packing in the hours. In fact, the benefits of working a flexible schedule may contribute to more growth and innovation in the firm, as, from my own experience, those who work reduced-hours tend to be less stressed and more engaged. Flexibility is essential for advancing talented women and other lawyers seeking balance in their life and careers.
Law firms have essentially two options for proceeding when offices begin opening back up. Return to the way you ran things, pre-pandemic, with rigid work policies and lack of flexibility. Or, embrace the future, where environments of flexibility and freedom reap the benefits of a happy and productive workforce. You choose.
Harrity’s LaTia Brand & Elaine Spector’s research regarding the the gender gap and lack of diversity in the field of patent law, specifically as it pertains to the mechanical and electrical engineering space, was quoted in a recent Forbes article.
“Although some patent practice areas where women are well represented, such as biotechnology and chemistry, other areas continue to lack significant diversity. According to an Article published by Elaine Spector and LaTia Brand for the American Bar Association ‘women account for only 11.4 percent of patent practitioners with a technical background in electrical engineering and only 11.1 percent of patent practitioners have a technical background in mechanical engineering…”
Read the full article on Forbes.com.
Jack Karp interviews Harrity’s Diversity Co-Chair, Elaine Spector, on improving diversity in the patent bar for Law360 Pulse.
“Few areas of the law are more white and more male than the patent bar, says Elaine Spector. She’s trying to change that.”
Read the full article on Law360 Pulse.
As we celebrate Women’s History Month, it is important to point out the role of women in the field of patent law. Women have been members of the patent bar since as early as 1898, when Florence King became the first woman registered to practice before the U.S. Patent Office, as well as the 685th registrant. She became a lawyer first, and then went back to school to obtain a degree in Mechanical and Electrical Engineering so that she could register on the patent bar. As a woman patent practitioner with a mechanical engineering degree, I feel a lot of gratitude to women like Florence King, who paved the way for me. Yet, despite her trailblazing efforts over a century ago, there is still a considerable lack of gender diversity in the patent bar…
Harrity diversity thought-leaders Elaine Spector, Edward Kim, and Ayana Marshall provided comments in response to USPTO‘s National Strategy for Expanding American Innovation alongside other members of the Intellectual Property Owners Association (IPO)‘s Women in IP and Diversity & Inclusion committees.
The first Diversity Dialogue webinar in a series of diversity-focused discussions hosted by Harrity’s Elaine Spector features HP’s Shruti Costales and MCCA’s Sophia Piliouras as panelists and covers challenging topics associated with increasing diversity in the patent field.
Some of the questions covered during the panel discussion include:
Watch the full webinar below:
Law360 (March 1, 2021, 5:19 PM EST) — Diversity and inclusion have garnered much attention over the past few years, particularly in the field of law, which is one of the least diverse professions in the U.S.According to the 2019 Law Firm Diversity Survey by Vault and the Minority Corporate Counsel Association, over 80% of lawyers in the U.S. are white. Not only are men overrepresented in the practice of law, but they outnumber women in equity partner positions nearly 5-to-1. In addition, around 90% of equity partners are white, and approximately 9% of equity partners belong to minority groups with only one-third of them being women of color.
Diversity statistics become even more troubling when we examine patent attorneys. The patent bar requires a hard science background, such as a degree in engineering, chemistry, physics or biology; however, the science, technology, engineering and mathematics field has historically been dominated by men, who, as of 2017, accounted for 76% of all STEM jobs, according to the U.S. Department of Commerce.
For patent firms seeking to increase diversity in their practice, existing diversity data is problematic. For starters, 94% of the patent bar is white, as seen in Figure 1 above. In addition, less than 15% of registered practitioners are women, people of color and members of the LGBTQ community in the areas of computer science, electrical engineering and mechanical engineering.
As registered patent practitioners move along their career paths, there is inevitable attrition, as reported in the Vault/MCCA Law Firm Diversity Survey report. Accordingly, it will be difficult for firms practicing in the areas of computer science, electrical engineering and mechanical engineering to improve their diversity numbers, particularly at the partnership level, given that the diversity numbers are so low before adjusting for attrition.
Diversity of the patent bar is not only important to those practicing in this profession, it is essential for broadening participation in the innovation process by underrepresented groups.
Innovation by underrepresented groups will start to improve when they can go to patent attorneys who understand them, who look like them, and who can relate to them. Improving the innovation ecosystem to include all groups of people will foster a more robust economy.
Despite the lack of diversity of the patent bar, an intellectual property boutique can increase diversity by first examining its hiring practice. For example, a rule similar to the NFL’s Rooney Rule can be implemented.
According to the Rooney Rule, for each new head coach position available, at least one candidate from an underrepresented group must be interviewed. In essence, to meet the requirements of the Rooney Rule, just one candidate from an underrepresented group would need to be interviewed for a position among a limitless number of other candidates.
This process can be taken one important step further — Rooney Rule 2.0. Instead of requiring only one candidate from an underrepresented group to be interviewed per position, Rooney Rule 2.0 requires such a candidate to be interviewed per each candidate who doesn’t belong to an underrepresented group.
This rule has been instrumental in increasing the diversity of applicants and, in turn, hires at my firm. In January 2016, prior to implementing Rooney Rule 2.0, 8% of my firm’s attorneys were women, attorneys of color, LGBTQ+ lawyers and lawyers with disabilities. Today, 30% of our attorneys belong to those groups, nearly quadrupling our diversity numbers in five years through the implementation of just one policy.
If your firm is serious about increasing diversity, revisiting your hiring practices is a vital place to start. Here are five key hiring strategies to increase diversity at your firm.
1. Increase the pool of candidates from underrepresented groups to be considered.
As discussed above, implementing Rooney Rule 2.0 will help increase the pool of candidates from underrepresented groups considered. While rules like the Diversity Lab’s Mansfield Rule have become popular over the last few years, it is exceedingly difficult to fill equity partner and leadership positions when there is not a proper base of lawyers from underrepresented groups to consider for the role.
To achieve Mansfield certification, law firms are required to demonstrate progress in increasing diversity in senior recruitment and leadership decisions by affirmatively considering a minimum of 30% women, lawyers of color, LGBTQ+ lawyers and lawyers with disabilities for these roles, including women, attorneys of color, LGBTQ+ lawyers and lawyers with disabilities.
By comparison, Rooney Rule 2.0 requires a 1-to-1 ratio of attorneys belonging to these groups and those who do not interviewed for positions at every level, rather than just leadership roles. This creates a larger pool of candidates from underrepresented groups at earlier career stages, allowing individuals from these groups to gain the necessary experience to eventually secure a role in leadership, and firms to have more success in achieving Mansfield certification.
By implementing policies like Rooney Rule 2.0, firms can significantly increase the number of applicants from underrepresented groups considered for a position, thus increasing the number of such candidates hired at the firm and those eligible to fulfill the Mansfield Rule.
2. Prepare a job posting to attract candidates from underrepresented groups.
A properly worded advertisement can help attract candidates from underrepresented groups. For example, words like “competitive” and “leader” attract more male candidates, while words like “support” and “interpersonal” attract more women.
In 2017, I came across a job advertisement for my firm that included the words “reduced hours available,” and “flexible schedule.” As a working mom, it was that very language that got my attention and ultimately persuaded me to leave an in-house position and return to private practice. It is also important to highlight reduced billable hour requirements, or elimination of such requirements, in job postings.
A simple advertisement to recruit women and minority candidates may read, “Remote Work, Flex Hours, Great Firm Culture.” You can also include information related to work-life balance, such as, “Work where you want, when you want, and how much you want,” or represent your firm’s culture by adding highlights, such as, “Casual culture, flexible schedules, positive people, supportive leadership, and a focus on giving back.”
Simply including words like “inclusive,” “people-oriented,” “friendly” or “forward-thinking” can also convey a welcoming message.
To garner the most attention from women and minority candidates, share videos created by your own employees discussing reasons why they love working at your firm. If these candidates can visibly relate to your employees, the wording of the posting will resonate with them that much more. After all, your job posting needs to be a reflection of the candidates you want in the role and show if your firm is inclusive.
3. Revamp your interview process.
I highly recommend revamping your interview process by migrating to the topgrading methodology. In this method, interviewers ask all candidates the same questions — questions that are very specific to their job tasks and responsibilities. The interviews are immediately documented and scored by interviewers.
All interviewers can be trained specifically in this technique. Having a structured interview minimizes “bias by allowing interviewers to focus on work competencies rather than on what they have in common with the person being interviewed,” as noted in the Intellectual Property Owners’ Association’s Practical Guide on Diversity and Inclusion. The guide further recommends including underrepresented minorities in the interview team.
4. Include a component of blind hiring.
Blind hiring can be an important aspect of your application process when it comes to skill evaluation. Your firm may decide to require candidates to partake in a testing phase, such as submitting a writing sample or taking a writing test, as writing is an important part of a career in patent law. A candidate’s performance on such tests may be a crucial determinant in whether the candidate will move on to the next step of the job application process.
There is no question that many interviewers have implicit biases. Implementing a component of blind hiring addresses any biases, unconscious or otherwise, when evaluating any skills-based test.
In the area of patent law, tests can be administered to evaluate skills related to either drafting a patent application or responding to an office action. A mediator, who first receives the test, can assign an anonymous identifier to the candidate, replacing all identifying information on the submission. Evaluators can then be sent the writing sample without reference or access to any information on the writer of the sample.
Often, gender and race can be assumed from a person’s name, and additional information such as location, education and previous employers can carry other assumptions. This strategy will help to eliminate any implicit bias that may occur at one of the most critical steps in an interview process and will ensure that candidates move forward based only on their qualifications, rather than an interviewer’s preconceptions.
While skills-based tests are a great way to objectively screen potential candidates, measures such as anonymization must be taken to ensure the test grading is truly objective.
5. Be a firm that gives back.
The legal community needs to recognize the importance of creating an unbiased, equal and harmonious working environment for all legal professionals. Unfortunately, the lack of diversity is widespread in the legal field, and the numbers show the industry is moving at a slow pace to address the issue.
To truly move the needle, firms will need to develop programs to specifically increase the diversity of the patent bar from 80% white men to a breakdown more representative of the population as a whole, as well as enhance existing female and minority practitioners’ quality of practice in patent law. This may include free mentoring, tutoring or interning programs, and a focus on both current practitioners and students as young as middle school in order to garner interest in joining the field.
Whatever program your firm creates, it should focus on giving back by providing more resources and opportunities to diverse individuals and give representation to currently underrepresented groups. Not only will such programs contribute to moving the needle with respect to diversifying the patent bar, they will also draw candidates from underrepresented groups to your firm.
Elaine Spector is a partner at Harrity & Harrity LLP.
 Not only are men overrepresented in the practice of law, but they outnumber women in equity partner positions nearly five to one. In addition, around 90 percent of equity partners are white, and approximately 9 percent of equity partners are racially diverse minorities with only one-third of them being racially diverse women. https://www.mcca.com/resources/reports/2019-vault-mcca-law-firm-diversity-survey/.
 “Women in STEM: 2017 Update,” U.S. Department of Commerce, Economics and Statistics Administration, Office of the Chief Economist ESA Issue Brief #06-17 (November 2017).
 “Diversity in Patent Law: A Data Analysis of Diversity in the Patent Practice by Technology Background and Region,” Landslide Magazine (September 2020).
 Gaucher, D., Friesen, J., & Kay, A. C. (2011). Evidence that gendered wording in job advertisements exists and sustains gender inequality.Journal of Personality and Social Psychology, 101(1), 109–128.https://doi.org/10.1037/a0022530.
 Smart, Bradford D., Ph.D. Topgrading: How Leading Companies Win by Hiring, Coaching, and Keeping the Best People. Portfolio, 2005.
 Id. at 60.
Harrity & Harrity, LLP has released its 2021 Diversity & Inclusion Report, focused on identifying and addressing the lack of diversity in the patent legal profession.
Our Diversity Mission has always been to promote and nurture a respectful, highly engaged, family-friendly, and inclusive culture that values the diversity of our talented team by leveraging and learning from our team’s diverse backgrounds, experiences, perspectives, skills, talents, and capabilities. Our goal with this report is to educate the field on the root of the issue and both suggest and inspire innovative diversity-focused solutions to instigate change, so that the future of our field is representative of the diversity of our population.
Read the full report below or click here to download a PDF version.
The practice of law remains one of the least diverse professions in America. Not only are men overrepresented in the practice of law, but they outnumber women in equity partner positions nearly five to one. In addition, around 90 percent of equity partners are white, and approximately 9 percent of equity partners are racially diverse minorities with only one-third of them being racially diverse women.
Diversity statistics become even more troubling when we examine patent attorneys. The patent bar requires a hard science background, such as a degree in engineering, chemistry, physics, or biology; however, the science, technology, engineering, and mathematics (STEM) field has historically been dominated by men, who, as of 2017, account for 76 percent of all STEM jobs, according to the U.S. Department of Commerce1.
Since 1950, less than 6 percent of USPTO registrants have been racially diverse (Fig. 1)2. For example, throughout the 1970s and 1980s, an average of 1.7 percent of registrants per year were racially diverse2. During the 1990s, the average for racially diverse registrants increased to approximately 4 percent of registrants each year. Despite significant increases in 2000 (16.2 percent increase) and 2013 (20.1 percent increase), respectively, the average USPTO registration rate for racial minorities since 2000 has hovered around 6.5 percent2. Among racially diverse women, the numbers are significantly worse, hovering at an average of 1.7 percent of registrants since 19502. In fact, there are more patent attorneys and agents named “Michael” in the United States than there are racially diverse women. From 1950 until 1999, an average of 0.2 percent of USPTO registrations each year were racially diverse women, with the first being registered in the late 1980s2. Since then, those numbers have improved very little, with an average of 2.2 percent of registrants being racially diverse women since 2000 (Fig. 2).
For patent firms seeking to increase diversity in their practice, existing diversity data is problematic. For starters, less than 15 percent of registered practitioners are diverse (race, gender, LGBTQ+, individuals with disabilities) in the areas of computer science, electrical engineering, and mechanical engineering2. As registered patent practitioners move along their career paths, there is inevitable attrition, as reported in the Vault/MCCA Law Firm Diversity Survey report3. Accordingly, it will be difficult for firms practicing in the areas of computer science, electrical engineering, and mechanical engineering to improve their diversity numbers, particularly at the partnership level, given that the diversity numbers are so low before adjusting for attrition.
Diversity of the patent bar is not only important to those practicing in this profession- it is essential for broadening participation in the innovation process by underrepresented groups. Innovation by underrepresented groups will start to improve when they can go to patent attorneys who understand them, who look like them, and who can relate to them. Lowering barriers to the innovation ecosystem to include all groups of people will foster a more robust economy.
The lack of diversity in the field of patent law is no secret, and several approaches have been tried in an effort to drive change, with two of the most popular approaches being internship and mentoring programs. These programs help STEM/law students and new patent agents/attorneys improve their skillsets; however, these approaches do little to move the diversity needle in a meaningful way. If they were truly impactful, we’d have seen more significant results over the many years these programs have existed. Even if internships and mentorships focus strictly on helping diverse groups, the programs still only help the minuscule number of diverse individuals who are already in the field, which does nothing to increase overall diversity numbers in patent law.
The Mansfield Rule® is another well-meaning approach for addressing diversity in the legal profession, specifically when it comes to diversity within leadership roles. To achieve Mansfield Certification®, law firms are required to demonstrate progress in increasing diversity in senior recruitment and leadership decisions by affirmatively considering a minimum of 30 percent diverse candidates for these roles, including women, attorneys of color, LGBTQ+, and lawyers with disabilities. Today, women account for a mere 20 percent of all USPTO registered attorneys and just 5 percent of all registered patent attorneys are racially diverse2. Therefore, it becomes statistically impossible for every patent law firm to have diverse candidates make up 30 percent of their leadership talent pool. The data doesn’t get much better for the general legal profession either, which has less restrictive requirements to practice as compared to patent law. As of 2019, all racial minorities combined make up just 17.48 percent of practicing attorneys, and only 3.43 percent of all attorneys include individuals with disabilities or that are openly LGBTQ+3. While women account for just over 36 percent of all attorneys, women of color only account for 9 percent (Fig. 3).
The Coca-Cola® “Heavy Stick” approach is similar to the Mansfield Rule®; however, it actively punishes firms that do not meet certain diversity requirements. According to a January 2021 article by Bloomberg Law4, “Coca-Cola® is forcing its outside counsel to staff at least 30% of new matters with diverse attorneys, with at least half of that billable time going to Black lawyers in particular.” The corporation’s General Counsel, Bradley Gayton, stated he hopes to increase the overall diverse billable hour staffing requirement to 50% within the next two years, calling the initiative “one of the legal industry’s most rigorous outside counsel diversity programs yet” and withholding a nonrefundable 30 percent of fees from firms that fail to meet diverse staffing metrics4.
As with the Mansfield Rule®, this approach poses several logistical issues based on the fact that only 3.45 percent of attorneys are Black (Fig. 3). Even after adding in all racially diverse attorneys, Coca-Cola® is limiting its legal talent force to less than 18 percent of the legal field (Fig. 3). Applying this approach to the patent field produces even worse results. For example, 86.5 percent of all intellectual property attorneys in the United States are Caucasian, meaning just 13.5 percent are racially diverse5. Looking at the patent field specifically, merely 1.7 percent, or 578 of the total 34,000 registered patent attorneys are Black (Fig. 4).
The “Heavy Stick” approach is sure to result in some level of quality reduction for client work products, because work is assigned based on physical characteristics instead of relevant legal skills and experience. Coca-Cola®, and others adopting the “Heavy Stick” approach, should expect a downward shift in quality, and perhaps also timeliness, efficiency, and expertise, if they decide to eliminate their existing standards in favor of this new diversity driven approach.
The overriding problem among the diversity approaches discussed above is that none address the root cause of the diversity issue: the numbers. It may be idealistic for an organization to say that it will hire a specific number of diverse candidates or counsel; however, when it comes time to make diverse hires, where will these diverse individuals come from? If, for example, every organization requires that 30% of their work goes to Black patent attorneys and, as we know, there is a pool of 578 of them5, how much work can those attorneys handle? What happens to the firms whose fees are withheld because these 578 attorneys already have too much work on their plates? How is it statistically viable to meet these standards, and what impact will it have on the health and work/life balance of the 578 attorneys?
For the reasons above, we believe that the Coca-Cola® “Heavy Stick” approach (i.e., an approach that punishes law firms that do not meet certain metrics) is not the correct approach to improve diversity in the legal profession, especially when the standards cannot be met with today’s pool of diverse attorneys. Instead, we recommend a “Carrot” approach, which rewards firms that innovate when it comes to diversity solutions. With the “Carrot” approach, companies can require firms to create and implement new diversity solutions, and explain how these solutions actually help solve the diversity numbers problem in the legal profession. The expectation of firms to create programs that bring more diverse candidates into the field, rather than merely manipulating data to check boxes or achieve unrealistic quotas, will help address the issue from the ground up. Companies should encourage and reward innovative and disruptive diversity solutions however they see fit. Whether this be awarding the firms with the most disruptive and beneficial solutions with a nominal monetary amount, investing in programs themselves through sponsorships or scholarships, or other applicable incentives, firms will switch their focus from scrambling to find diverse attorneys or recruiting from competing firms to making a lasting impact in the field.
Our Diversity Mission has always been to promote and nurture a respectful, highly engaged, family-friendly, and inclusive culture that values the diversity of our talented team by leveraging and learning from our team’s diverse backgrounds, experiences, perspectives, skills, talents, and capabilities. At Harrity & Harrity, we are committed to The Rooney Rule 2.0, a hiring policy we pioneered that demonstrates our firm’s commitment to our Diversity Mission is not just lip service.
The Rooney Rule is a National Football League policy that requires league teams to interview one minority candidate for every head coaching or senior football operations job opening. However, this means that if 1,000 individuals apply to the opening, only one minority individual needs to be considered and the other 999 can be white males. Our Rooney Rule 2.0 takes this policy a step further; we are committed to interviewing one female or minority candidate for every male, non-minority candidate interviewed for any position at our firm. While this is similar to the Mansfield Rule® in that diverse candidates are considered, the Rooney Rule 2.0 applies to all positions at the firm, not just leadership roles. Prior to implementing our Rooney Rule 2.0 in January of 2016, 8 percent of Harrity & Harrity attorneys were diverse. Today, 30 percent of our attorneys are diverse, nearly quadrupling our diversity numbers in five years through the implementation of just one policy.
We also remain committed to producing top quality work for our clients, so unlike the “Heavy Stick” approach that selects candidates based on physical characteristics, our candidates must go through a rigorous hiring process, which includes skills-based testing. Once a candidate submits their test, all identifying information is removed to eliminate potential scoring bias and is replaced with an anonymized code prior to sending the test to a separate grading team. We aspire to grow our diversity numbers; however, we cannot sacrifice the quality of our work or the value of our clients’ IP assets. Our process allows candidates to be screened based solely on their abilities, rather than physical characteristics. Once hired, every individual is reviewed based on a scorecard that relates to their position and includes strictly objective metrics to be graded on (timeliness, work product volume, efficiency, etc.). This process allows individuals to be reviewed solely based on their job performance, and again removes the likelihood of bias.
We recognize that our high standards for quality limit the overall pool of eligible candidates, and that not enough diverse individuals exist in that pool in the first place. To fix the root cause of this problem – the lack of diversity in the legal profession – requires a long-term approach to be measured in years, not months or days. Several factors contribute to this problem, which, in turn, requires a multi-pronged solution:
Using this knowledge, Harrity’s Diversity Committee has dedicated many hours to creating, implementing, and evolving Diversity Programs that are focused on serving the legal community by helping to increase the number of diverse legal practitioners and enhancing their quality of practice in patent law.
Minority Firm Incubator Program: We hired our first Minority Firm Incubator (MFI) candidate in 2020. This program was established to help train, cultivate, and launch minority-owned patent law firms. The program consists of four phases: Drafting Patent Applications, Prosecuting Patent Applications, Firm Management, and Firm Launch. In the fourth year, program participants have the tools, knowledge, and experience required to launch their own patent law firms with the added benefit of established corporate relationships based on Harrity working with our clients to send work to a graduate’s new firm. Firm leaders will receive ongoing mentorship from Harrity to help ensure their success. The goal of the program is to increase the number of minority owned law firms. Incubator programs are vital because they help jumpstart a new law firm in the same way venture capital funding helps startups ramp up their operations. Minority-owned firms are less likely to have access to the capital and resources needed to run a sustainable business, and the Harrity MFI reduces these obstacles by connecting new firms with clients and by providing personalized training to the firm’s leadership team.
Minority Firm Incubator 2.0: In an attempt to make our Minority Firm Incubator program more impactful to the patent field, we are developing an enhanced version of our program. This program will be both a virtual and condensed version of our current MFI and focus on helping diverse individuals launch their own patent firms and help existing, struggling minority-owned firms to succeed. The program will teach best practices of firm management and focus on improving quality processes within the firms, which will in turn allow them to give better pitches, win more business, and produce higher quality work product.
Annual Women’s Patent Law Workshop: We are currently planning our Fourth Annual Women’s Workshop, to be held May 2021. This four-day virtual workshop introduces the field of patent law to female science and engineering students, law school students, and recent graduates. Women from across the country join us for skills training in patent preparation, prosecution, and writing; career and resume mentoring; patent bar preparation; and to learn first-hand from partners at major law firms, leaders in university tech transfer, and in-house counsel about their experiences as women in the legal field. By engaging women at the early stages of their careers, we hope to encourage them to join the patent field and provide them with tools to do so successfully.
The Harrity Academy: Launched in September of 2020, the Harrity Academy is a free virtual program comprised of three courses that introduce diverse participants to the field of patent law; provide exclusive training, practice materials, and mentorship; and teach how to effectively and efficiently draft and prosecute high-quality patent applications. The goal of this program is to help increase the number of diverse candidates entering the patent field by targeting diverse students in STEM programs and law schools; newly practicing attorneys; and early career engineers. Courses are held each Spring and Fall, with 20 participants per class, and are voluntarily taught by Harrity attorneys.
The Diversity Channel: In January 2021, Harrity launched The Diversity Channel, a collection of resources aimed at increasing diversity and inclusion in the patent field by sharing ideas and sparking conversations. The channel includes published articles on the issues surrounding diversity in the legal field; Driving Diversity, a weekly vlog produced by Diversity Co-Chair Elaine Spector with consumable tips to drive diversity within an organization; and Diversity Dialogue, a series of webinars held throughout the year featuring diversity-thought leaders that provide the benefits, challenges, and processes associated with increasing diversity in the patent field.
Patent Pathways: While each of our Diversity Programs have the implicit goal of encouraging diversity and inclusion in the patent legal field, Patent Pathways will have the most direct impact on the least represented group (i.e., Black female patent practitioners), with a goal of increasing the number of Black female registered patent practitioners. The program includes an introduction to patent careers, several weeks of patent preparation and prosecution training, and a clear pathway to taking and passing the patent bar. This program will include corporate sponsorships for patent bar preparation courses as well as taking the bar, and potential law school scholarships offered to those who pass the patent bar. Patent Pathways participants will also be matched with patent attorneys for ongoing mentorship opportunities and maintain a network of other Patent Pathway participants to help each other succeed throughout their careers.
Harrity’s Tutoring Program: While internships and mentoring programs help diverse individuals who are already in the field, tutoring programs aimed at middle and high school students in math and science classes focus on encouraging diverse individuals to enter the patent field. By enlightening students, at a young age, to education opportunities in the STEM field, we provide students with the encouragement needed to become interested in a patent law career, and give them the tools they need to pursue such a career. Our proposed program consists of three phases:
Phase 1 – Provide free STEM tutoring to girls/women who are interested in STEM, starting as early as middle school and continuing through college. This program will help increase the number of women who go to college to pursue a STEM degree and greatly increase the chances that they graduate with such a degree. We recommend that all participants of this program be required to partake in free mentoring sessions, which will include an introduction to the patent field.
Phase 2 – Expand the program to include all categories of diverse students.
Phase 3 – Expand the group of schools and colleges involved.
Possible Expansion – Provide free English tutoring (since writing is an important part of a career in patent law).
The overall goal of the program is to increase the percentage of diverse USPTO-registered patent professionals in the patent field so as to better represent the diversity of the U.S. population. This program requires partnering with skilled tutors for complex STEM courses and requires the support of corporate sponsors.
Internal Progress: In early 2020, we named our first female partner, Elaine Spector. Along with her twenty years of experience in the patent field, Elaine serves as Co-Chair of the Harrity Diversity Committee, Chair of the AIPLA Women in IP Law Committee’s Global Networking Event and Outreach Subcommittee, Vice-Chair of IPO’s Diversity and Inclusion Committee, Co-Chair of IPO’s Diversity & Inclusion Outreach Subcommittee, and a Board Member and Secretary at the non-profit No More Stolen Childhoods.
As a firm, we are actively involved with several organizations that promote Diversity within the legal community: AIPLA- Women in IP Law Committee; Association of Legal Administrators, ChIPs; IPO Diversity & Inclusion Committee; and Minority Corporate Counsel Association (MCCA). We will also be conducting monthly Affinity Group meetings led by Edward Kim, former president of the largest government-affinity group, USPTO-Asian Pacific American Network (APANET). In addition, we are proud to report that all employees at the firm completed diversity and unconscious bias training in the last year. We continue to work every day to ensure inclusion within our firm through open communication, weekly leadership check-in calls, and regular committee meetings which allow any member of our firm to participate in brainstorming initiatives for all aspects of our business development, including our Diversity Committee.
Imagine the future of our legal profession if companies adopted our proposed Carrot approach, where a majority of law firms are developing new and disruptive diversity programs to finally make the diversity issue a thing of the past. One of the largest obstacles we face in this battle is a lack of action. While current approaches attempt to address internal diversity counts, rarely are organizations creating external programs directed at fixing the root cause of the issue. The legal profession first needs to recognize that the problem is not that firms do not want to hire diverse candidates, but that a sufficient number of diverse candidates do not exist in the field in the first place. Using this knowledge, organizations that require law firms to seek practical and attainable solutions that bring more diverse individuals into patent law will be the ones responsible for revolutionizing the field with respect to diversity. In turn, we can create proportionate opportunities for diverse individuals to thrive in the field, such as described in the Mansfield Rule® and Coca-Cola® approaches.
That being said, Harrity & Harrity is currently taking action to tackle this issue head-on. As outlined in our aforementioned Diversity Programs section, we have dissected the causes of the diversity issue and created realistic plans of action to begin addressing diversity issues from the ground-up. While we recognize that this will be a long-term effort, we are confident that we can drive the field in the right direction, beginning now.
This program is scheduled to launch in Spring 2022. Materials for patent training will be provided by Harrity, and classes will be taught by both Harrity attorneys and other leaders in the patent field. The goal of this program is to increase the number of Black female registered patent practitioners; however, this training is only successful if participants actually go on to take the patent bar. This opens up several partnership opportunities, including:
1. Exclusive Program Sponsorship: Pay for patent bar preparation course, patent bar exam, and USPTO registration fees for all of the women who participate in our Patent Pathways program. This equates to $500 per preparation course, $400 per patent bar exam and $100 per registration for up to 20 women in the class at a time.
2. Non-exclusive Program Sponsorship: Pay for one or more women for one or more stages of the patent bar registration process. This equates to roughly $500 per preparation course, $400 per patent bar exam and/or $100 per registration.
3. Scholarships: Offer law school scholarships to any number of women who both complete the Patent Pathways training and obtain registration with the USPTO. The amount of any particular scholarship is discretionary.
Harrity’s Tutoring Program
Providing diverse students with the resources needed to succeed in the STEM field at a young age will increase the likelihood of them going on to pursue a degree and a career in STEM, which is a critical first step for entering the field of patent law. With a long-term goal of increasing the percentage of diverse USPTO-registered patent professionals, students need to both be aware of this opportunity, and be equipped to succeed should they pursue it, which this program accomplishes. Our tutoring program will have several partnership opportunities, including:
1. Exclusive Program Sponsorship: Pay for full tutoring program for entire participant group, which includes multiple tutors for multiple schools. (cost TBD)
2. Non-exclusive Program Sponsorship: Pay for one or more tutors for one or more students. (cost TBD)
3. Scholarships: Offer undergraduate scholarships to any number of students who complete the tutoring program and enter a STEM program at an accredited university. The amount of any particular scholarship is discretionary.
We are actively seeking partners to join us in transforming the legal profession to one that mirrors the diverse landscape of our society as a whole. This starts with giving diverse individuals the tools required to enter and succeed in the patent field and encouraging early interest in pursuing a career in patent law. We feel that our Patent Pathways and Tutoring Program will do exactly that. However, these programs require the partnership of corporations and/or law firms to achieve a significant, nationwide impact. Will you join Harrity on the forefront of this transformation?
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Law360 (December 23, 2020, 4:20 PM EST) — To address some of the issues underlying a lack of diversity in patent law, Harrity & Harrity LLP has announced a new set of free classes the firm hopes will inspire more patent lawyers from underrepresented populations.
The Harrity Academy, which the midsize firm launched this fall, consists of three Zoom classes that will convene throughout 2021. Ranging from four to eight weeks in length, the three classes address different aspects of patent law and range in scope depending on the participants’ experience. Each course will be led by a Harrity & Harrity attorney and has 20 spots available, the press release says. The program also includes mentorship and breakout sessions for more individualized attention…
“Women are amazing advocates for other people, but not good advocates for themselves.”
Harrity Partner and Diversity Chair Elaine Spector was featured on the IP Breakfast Podcast with hosts Albert Decady & Emmanuel Coffy to discuss the gender gap in IP, her experiences as a female practitioner, and what needs to change to bridge the gap and give women the tools and confidences to succeed in a male-dominated field. Listen now at http://ow.ly/fyMu50CnogQ.
The Diversity & Inclusion Committee of the Intellectual Property’s Owners Association has released ‘A Practical Guide to Diversity & Inclusion in the Legal Profession.’
The IPO D&I Guide is designed to help improve diversity and inclusion in the legal profession, with contributions by Elaine Spector, Carlyn Burton, Shruti Costales, Serena Farquharson-Torres, Gloria Fuentes, and Rachael Rodman.
Check out the full guide below!IPO-Practical-Guide-to-Diversity-and-Inclusion-Version-2-Sept-2020
Harrity’s Elaine Spector and LaTia Brand provide a deep-dive analysis of the lack of diversity in the patent practice for the American Bar Association’s Landslide® Magazine. Read the full article here:
Diversity in Patent Law
With COVID-19 sending everyone into lockdown, you may find yourself looking for something productive to do. Now is a great time to learn something new. Particularly since many events that would not typically be found online are now offering free virtual versions via live streaming and video conferencing. The ability to get online provides access to innumerable resources to stay entertained and learn new skills. It is the ideal time to reconnect with your goals and start achieving them. For those interested in patent law, IP firm Harrity & Harrity, LLP is one of those resources.
In response to the current climate, Harrity will host its third annual Women’s Workshop as an online program. The workshop is a rare opportunity to learn basic patent preparation and prosecution skills, interact with some of the most prominent female patent lawyers in the industry, network with a diverse group of participants, meet with a writing coach, have live Q&A’s with practicing patent attorneys, access free career mentoring, and more. The four-day program will take place May 18-21 and will be held live through online video conferencing. It is entirely free and is available to engineers and law students or recent graduates with technical backgrounds who are interested in pursuing a future in intellectual property. The program will allow participants to explore the lucrative opportunities provided by a career in patent law and learn what it takes to succeed, specifically as a female, in the patent field.
Obtaining a patent can be a complex process and requires several steps, including searching prior art, determining patentability, preparing and filing a patent application, and corresponding with the patent office through patent prosecution. It can be a particular struggle to determine whether an invention is a new, non-obvious invention and how it differs from existing patented concepts when attempting to obtain a patent.
In Harrity’s Women’s Workshop, you will learn how to effectively draft and prosecute patent applications in order to get the patents allowed by the USPTO, an action that will officially patent an invention. The skills to do so will be learned through a series of presentations, discussions, and practice assignments throughout the immersive program.
Speakers for the 2020 Women’s Workshop include female partners at top patent firms, the American Intellectual Property Law Association’s (AIPLA) President Elect, IP Counsel for leading technology companies, the President of the Minority Corporate Counsel Association’s (MCCA) Advisory Practice, and the former acting director of the United States Patent and Trademark Office. Each speaker will provide guidance on best practices in patent law and exclusive advice on how to succeed as a woman in this underrepresented industry.
For the first time, the 2020 Women’s Workshop will also include writing skills training by writing expert, Ed Good. Ed is a globally recognized trainer in corporate writing skills with specific expertise in legal writing. The program will also include resume and interview preparation and career mentoring for success in the patent field.
Upon completion of this workshop, participants will have a thorough understanding of what a career in patent law entails and have the tools required to pursue one.
At Harrity, We believe that the ‘practice of law’ is advanced by a more diverse legal team – with diversity of background, upbringing, education, and perspective comes quality legal innovation. Our mission is to promote and nurture a respectful, highly engaged, family friendly, and inclusive culture that values the diversity of our talented team with diverse backgrounds, experiences, perspectives, skills/talents, and capabilities.
The Annual Women’s Workshop is part of our ongoing diversity initiative aimed to increase the number of women practicing in the IP legal field and climbing the ladder to success. Harrity’s previous workshops are highly rated and recommended by past participants.
The virtual workshop will take place from May 18-21st and is completely free. Whether you are a science or engineering major, current student at a law school, or practicing attorney interested in intellectual property, the Harrity Women’s Workshop is a can’t-miss opportunity. The application deadline to participate is April 30th, so don’t delay- Apply Now!