Inequality on Appeal: The Intersection of Race and Gender in Patent Litigation

69 Pages Posted: 27 Nov 2023 Last revised: 27 Mar 2024

See all articles by Paul R. Gugliuzza

Paul R. Gugliuzza

Temple University - James E. Beasley School of Law

Rachel Rebouché

Temple University - James E. Beasley School of Law

Jordana Goodman

Chicago-Kent College of Law - Illinois Institute of Technology

Date Written: February 2, 2024

Abstract

Today, roughly 40% of U.S. lawyers are women, 15% are people of color, and 8% are women of color. Yet people of color, and women of all racial identities, rarely climb to the most elite levels of law practice. This article, based on a first-of-its-kind, hand-coded dataset of the gender and perceived race of thousands of lawyers and case outcomes, provides a stark illustration of on-going racial and gender disparities, focusing on the high-stakes world of appellate patent litigation.

All appeals in patent cases nationwide are heard by the U.S. Court of Appeals for the Federal Circuit, a court that is itself diverse: out of twelve active judges, five are women and four are persons of color, two of whom are women of color. But, out of 6,000-plus oral arguments presented to the Federal Circuit in patent cases from 2010 through 2019, 93% were delivered by white attorneys. Barely 2% were by Black or Hispanic/Latino attorneys. Adding in data about gender, white male attorneys alone argued 82% of patent cases during the decade we studied. Women of color, by contrast, argued fewer than 2%.

The disparities we find bear no correlation to attorney performance. Appellants in Federal Circuit patent cases win about a quarter of the time and appellees win about three-quarters of the time—with no differences based on race, gender, or the intersection of the two. The one cohort of lawyers in our study that does win more frequently is a small group of lawyers at large law firms who argue Federal Circuit patent appeals more frequently than anyone else. That group of roughly 65 lawyers is, like our dataset overall, overwhelmingly white and male.

In general, our study tells a dispiriting story: despite increasing diversity among law students and lawyers, and no connection between a lawyer’s gender or perceived race and case outcomes, a lack of diversity persists at the legal profession’s highest levels. However, we identify discrete areas of patent practice where women, people of color, and women of color are more visible—most notably, in representing the federal government (as opposed to private-sector clients) in patent appeals. Those original findings animate our proposals to make the patent system, and high-level law practice generally, more diverse and inclusive.

Keywords: patent law, Federal Circuit, racial inequality, gender inequality

Suggested Citation

Gugliuzza, Paul R. and Rebouche, Rachel and Goodman, Jordana, Inequality on Appeal: The Intersection of Race and Gender in Patent Litigation (February 2, 2024). UC Davis Law Review, Vol. 58, Forthcoming, Temple University Legal Studies Research Paper No. 2023-22, Available at SSRN: https://ssrn.com/abstract=4614338 or http://dx.doi.org/10.2139/ssrn.4614338

Paul R. Gugliuzza (Contact Author)

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States

Rachel Rebouche

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States

Jordana Goodman

Chicago-Kent College of Law - Illinois Institute of Technology ( email )

565 W. Adams St.
Chicago, IL 60661-3691
United States

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