Overqualified and Under-Represented: Gender Inequality in the Pharmaceutical Patent Field

Abstract

Pharmaceutical patents represent some of the most valuable intellectual property assets for drug companies. These patents can be worth billions of dollars if found valid and infringed. Correspondingly, if invalidated, generic drug manufacturers can get to market earlier, generating billions of dollars of added revenue. Accordingly, drug patents are associated with high-value, high-cost, bet-the-company type prosecution and litigation. Women, however, are noticeably absent from pharmaceutical patent practice. Women represent only 30% of pharmaceutical patent litigators, and only 33% of pharmaceutical patent prosecutors. Some commentators argue that this lack of representation is due to a “pipeline” problem: we don’t see. women in STEM-focused legal careers because women are underrepresented in STEM undergraduate and graduate programs. Proponents of the pipeline argument contend that the solution to gender and racial homogeneity in patent practice is to simply graduate more women from STEM programs or to adopt more flexible requirements for entering patent practice. This study focuses on pharmaceutical patent litigation from 2009-2021. Specifically, this study reviews: (1) the patent prosecutors who obtained these valuable drug patents; (2) the USPTO patent examiners who reviewed these patents; and (3) both the generic and brand pharmaceutical patent litigators. We find significant gender disparities in the private sector lawyers at both the prosecution and litigation levels. The empirical study presented in this article refutes the pipeline argument when it comes to women in pharmaceutical patent prosecution and litigation. It shows that, for over a decade, women have consistently obtained undergraduate, masters, and doctorate degrees in the biological sciences at higher rates than men for over a decade.6 Furthermore, the study finds that women make up over two-thirds of law students with a health professions degree and over half with a natural sciences degree. Yet, despite having more education in the sciences, women are still underrepresented in private sector pharmaceutical patent prosecution and pharmaceutical litigation. Interestingly, however, this gender disparity does not carry over to public sector work in patent law. The study finds the U.S. Patent and Trademark Office (USPTO) is the one place where we see near parity between men and women in the pharmaceutical patent field: 45% women versus 55% men. Women at the USPTO Solicitor’s Office argue about the same number of cases at the Federal Circuit. Further, women make up nearly half of the Court of Appeals for the Federal Circuit. Finally, unlike the private sector, women at the USPTO are paid at the same rate and stay for the same amount of time as their male counterparts at the USPTO. Drug companies and law firms all state that diversity is an important aspect of their business models. But, as this study shows, there is a disconnect between rhetoric and action. The problem does not seem to stem from a lack of education or a lack of participation in the legal system. The problem may be a lack of opportunity given to women to participate in this type of valuable litigation. The solution may have to come from within the industry, specifically those who have control over hiring outside counsel. Law firm clients may have to use the power of the purse to help encourage greater diversity.