Overqualified and Underrepresented: Gender Inequality in Pharmaceutical Patent Law

Abstract

Pharmaceutical patents represent some of the most valuable intellectual property assets in the world: they can be worth billions of dollars if courts uphold their validity and find them infringed. But, if invalidated, generic drug manufacturers can get to market earlier, generating billions of dollars of revenue for themselves and creating enormous savings to consumers. Accordingly, drug patents are the product of careful, high-cost prosecution and are associated with high-stakes, bet-the-company litigation.

Women lawyers, however, are noticeably absent from pharmaceutical patent practice. This article reports an original, empirical study finding that women comprise only one-third of the top pharmaceutical patent litigators and only one-quarter of lawyers who prosecute litigated pharmaceutical patents—numbers far below the share of women in the legal profession overall. The conventional wisdom is that this lack of representation is due to a “pipeline” problem—that is, a lack of women in the technical fields essential to patent practice. But our study finds little support for that theory. To the contrary, more women law students have scientific undergraduate and graduate degrees than their male counterparts.

Interestingly, the gender gap among pharmaceutical patent lawyers does not carry over to public sector work. The U.S. Patent and Trademark Office is the one place where our study finds anything close to parity: 42.3% of pharmaceutical patent examiners are women and 57.7% are men. This finding adds to a nascent literature documenting vast disparities in gender representation in the private versus public sectors, both in patent law and in law practice more generally.

It also suggests that the lack of women doing patent law in private practice in the pharmaceutical field is probably not due to any pipeline problem; instead, it likely stems from structural inequalities that permeate the highest levels of corporate law firms. Those firms, as well as their pharmaceutical company clients, all say that diversity is important. But, as our study shows, there is a disconnect between rhetoric and reality. Fully solving structural inequality in law practice is a formidable task, but this article sketches a few ways in which firms and their clients could help create a patent bar that is more diverse and inclusive.

Keywords: gender, patent, patent litigation, pharmaceutical, diversity, inequality, patent prosecution, PTO