The Request for Comments states: “This request for comments seeks public input on the scientific and technical requirements to practice in patent matters before the United States Patent and Trademark Office (USPTO or Office). Specifically, the Office seeks input on whether it should revise the scientific and technical criteria for admission to practice in patent matters to require the USPTO to periodically review certain applicant degrees on a predetermined timeframe, and make certain modifications to the accreditation requirement for computer science degrees.
“This request for comments also seeks input on whether the creation of a separate design patent practitioner bar would be beneficial to the public and the Office, whether to add clarifying instructions to the General Requirements Bulletin for Admission to the Examination for Registration to Practice in Patent Cases before the United States Patent and Trademark Office (GRB) for limited recognition applicants, and whether the Office should make any additional updates to the scientific and technical requirements for admission to practice in patent matters. The USPTO is undertaking this effort as part of its continual review of the admission criteria for sitting for the registration examination.”
Narrow field of admission criteria
The GRB allows an applicant to provide proof of attaining a degree in certain subjects listed under Category A.
Category A has considerably expanded since the early 1990s when I applied to sit for the exam, when, even with a PhD in molecular biology and genetics and two years of neuroscience graduate school, I was not qualified under Category A (biology apparently not being “technical” enough at that time).
Alternatively, one can look to Category B, which lists numbers of semester hours in certain courses that would allow one to qualify. I cobbled up all the chemistry and physics hours I could in order to qualify.
Article highlights USPTO's "outdated set of scientific and technical requirements"
Categories A and B have been broadened through the years, but it was not until an article was written in the fall of 2020 by a law student at Indiana University’s Maurer School of Law, Mary T. Hannon, that the USPTO picked up on the fact that its Categories were inherently biased against women.
Mary T. Hannon begins this paper as follows:
“Qualified women are unnecessarily excluded from membership in the “Patent Bar” as a result of the perpetuation of an institutionally biased and outdated set of scientific and technical requirements by the United States Patent & Trademark Office (USPTO). While the USPTO has not failed to recognize the lack of equal gender representation among innovators in the United States, it has remained silent on the lack of gender diversity within its own patent bar. Still further, even when the gender gap within the Patent Bar has been acknowledged, there have been few, if any, attempts to abolish the systemic obstacles that seem to exclude women from participation.
“As will be appreciated by any patent practitioner, and as will be addressed in more detail herein, to be Patent Bar eligible in the United States, an individual must establish she has the requisite “scientific and technical” knowledge. While the reasons women are underrepresented in the Patent Bar are not due exclusively to these scientific and technical requirements, these eligibility requirements are unnecessarily exclusionary of women and are responsible, in large part, for the lack of female patent practitioners in the United States. This exclusion of women, as well as the pervasive silence and lack of acknowledgement thereof, is particularly troubling in a time in which there is a growing recognition of the lack of gender equality within the patent system as a whole.”
USPTO widened admission criteria in 2021
In apparent response to this paper, the USPTO sought comments on the Patent Bar qualifications in early 2021.
This initiative sought to provide a more flexible approach in considering degrees not recited verbatim in Category A, where rigidly relying on the specifically recited degrees might discourage the involvement of women and others who are underrepresented in the innovation ecosystem.
In the fall of 2021, the USPTO expanded Category A with respect to technologies and included advanced degrees, and revised Category B to be more flexible, with the inclusion of biology courses!!
New "Design Patent Practitioner Bar"?
The current Request for Comments looks to broaden the consideration of computer science degrees, but also considers the possibility of establishing a separate “Design Patent Practitioner Bar”, the creation of which would most certainly expand the diversity of USPTO registered practitioners to include more women and others who are underrepresented in the innovation ecosystem.
USPTO Director Kathi Vidal has made considerable strides in embracing and encouraging women to innovate, as has the World Intellectual Property Office (“WIPO”) in its “Closing the Gender Gap in IP” series.[2]
FICPI's view
FICPI’s DEIA committee is thrilled to see these initiatives in advance of the International Day of Women and Girls in Science on 11th February, as well as World IP Day on 26th April, dedicated to “Women and IP: Accelerating innovation and creativity.” https://www.wipo.int/ip-outreach/en/ipday/
References
[1] In the US, a patent practitioner can be a “patent agent,” who has a degree and/or coursework in particular areas and has passed the Patent Bar, or can be a “patent attorney,” who additionally has a law degree. Both types of patent practitioners can practice before the USPTO, while only patent attorneys can practice in district court. Trade mark attorneys in the US need only be registered in the bar of any US state (i.e. they have a law degree and have passed a state bar.)
[2] Tune in to a FICPI Focus 45 webinar on 8th March 2023, when Lisa Jorgenson, WIPO’s first female Deputy Director General of the Patents and Technology Sector, will be participating in our webinar on Gender and Equity!