• Unconscious bias reported, not overt prejudice or discrimination
A framed photo of trial consultant Tara Trask with a gaggle of lawyers and clients she advised on a patent case hangs in her office. The team smiles proudly outside a Texas courthouse, following a hard-fought win.
Two years later, when Trask set out to research the diversity of the intellectual property trial teams she’d worked with, something she hadn’t noticed in that photo jumped out: she was the only woman in a group of 13 white men.
In a sample of 50 attorneys in seven intellectual property trials she consulted on from January to August 2017, Trask found most were tried and led by white male attorneys. The majority were patent cases.
“Patent litigation is still a man’s game,” Trask said. “Women have got to show grit and determination and just get in there.”
Women she studied mostly participated in non-speaking support roles, and represented only 8 percent of attorneys in leadership positions, such as lead counsel, partners in speaking roles at trial, and in-house or client service. Only 28 percent of attorneys in the seven cases—team leads, partners, and associates—were women.
“I don’t see much in the way of senior women patent litigators at the trial table or negotiating with adversaries, or at the arbitration table, or in any kind of senior position,” Wendy Akbar, a Phoenix-based patent litigator and shareholder at Venjuris PC, said. “There are a few, but they seem to be more few and far between.”
Trask’s San Francisco-based consulting firm, Trask Consulting, helps law firms prepare for litigation, conducting mock trials, analyzing venues, and preparing witnesses. Her research sample set is small, but given the dearth of data on the number of women in IP litigation, it sheds some light on the makeup of IP trial teams in the U.S.
Some female patent litigators see an under-representation of women in IP litigation, and they told Bloomberg Law that the reasons aren’t one-dimensional. Fewer women than men graduate with undergraduate degrees in technical fields such as electrical engineering, they said. Technical degrees aren’t a prerequisite for IP litigators, but can lay the groundwork for and spur an interest in patent work. Like all litigators, they said, women face the challenge of balancing families and the demands of being an IP trial lawyer.
Despite diversity efforts at some law firms, a gender gap is prevalent in intellectual property litigation, even as other practice areas, such as family and corporate law, have shown improvement, female patent litigators said.
None of the attorneys interviewed by Bloomberg Law said they faced overt prejudice or discrimination in the workplace. But they said there was an unconscious bias.In her time consulting on about 60 patent cases in the last 10 years, Trask said she has mostly seen women on trial teams examining damages experts rather than questioning technical experts. There’s an age-old, implicit bias that men have better math and science capabilities, she said.
“The knee-jerk is that you’ve got a safer bet with a man, if you’re making decisions on the trial team and you’ve got to justify those to the client,” Trask said.
Having technical expertise, however, is not required to be a successful patent litigator, Annie Rogaski, a former patent litigator and now general counsel and vice president at imaging technology startup Avegant, said.
The larger hurdle for women is the historical way in which opportunities are handed down at law firms, Rogaski said.
She said she has heard male colleagues say numerous times: “I’m going to pass this case on to my buddy.”
Having client relationships is power, Rogaski said. “If that’s being passed down from man to man, you have a historical barrier where women can’t break through.”
Pushing Through …
Rogaski, who has been first-chair in trials during her 15 years in patent litigation and founded HIPLegal, an IP law firm, with two other female patent attorneys, hopes to see more women leading patent trial teams.”I’ve seen women argue, but it is rare,” she said, recalling that about ten years ago she stood in a packed hearing room in the U.S. Federal Circuit Court of Appeals without another woman in sight.
The lack of non-white members on patent teams also stood out in Trask’s research. Four of 90 trial team members in her data set—50 attorneys and 40 in support roles, such as legal assistants—were non-white and female. One was a partner in a non-speaking role, one was an associate, and two were administrative assistants.
Former patent litigator Denise McKenzie said she never saw another woman of color speak at a courtroom trial during her career, which spans two decades.
McKenzie, who has an academic background in electrical engineering and mathematics, joined the University of Southern California’s Stevens Center for Innovation in 2017 as a licensing associate after working at major law firms such as Sidley Austin LLP, Kirkland & Ellis LLP, and Arnold & Porter LLP.
McKenzie said she got pregnant a month into her first law firm job. She was able to manage hectic travel and work long days, nights, and holidays because her mother, mother-in-law, and husband helped care for her daughter, who is now 20, she said.
Support in the workplace didn’t come easy, McKenzie said. When working with a trial team that had other female members, she fought hard to be the one who got to question witnesses on a patent case with million dollar stakes.
“I just kept fighting, kept asking and kept pushing and kept saying that I would be the best one to do it,” McKenzie said. “I was unrelenting to the point where I became an annoyance, but I had to get that opportunity, and that was the only way it would’ve happened for me.”
… Signs of Progress
Some law firms are taking steps to cultivate diversity. For instance, 43 percent of 21 attorneys elevated to principal at Fish & Richardson P.C. were women, the IP law firm said as it announced promotions in January.Akbar said smaller and boutique IP law firms are working to be more inclusive. The gender ratio among shareholders and attorneys in her firm, Venjuris, a boutique intellectual property law firm, is nearly 50-50, she said. That is “trickling upwards as opposed to things trickling down,” and big law firms are paying more attention toward diversifying trial teams in IP cases, she said.
Younger attorneys and judges entering litigation could change the gender ratio.
“With millennials, I don’t see the kind of unconscious biases that I see among baby boomers in law firms,” Rogaski said. “But I still would say we are 10 years away from seeing even 25 percent of women as first-chair trial attorneys in patent litigation.”
To contact the reporter on this story: Malathi Nayak in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Barbara Yuill at email@example.com