Studies highlight gender and race-based gaps in patent applications

Identifying the extent, and causes, of gender- and race-based disparities among patent recipients in the US may help to provide ways to narrow these gaps, researchers say.

Data from the US Patent and Trademark Office (USPTO) shows that, in 2020, fewer than 13 per cent of patent recipients in the US were women. And Black American inventors — less easily tracked, since race is not identified on patent applications — are three times less likely to be patent holders than their white counterparts, according to a December 2023 Science magazine article.

These gaps contribute to income inequalities and influence who receives funding for invention, researchers in US academic, business and legal fields have found. They also influence what type of innovation emerges, and who benefits from it.  

Jordana Goodman, an assistant professor at the Chicago-Kent College of Law who studies equity in the science, technology, engineering and mathematics fields, points to the example of inventors Bruce Boyd and Brigitte Gopou, whose experience may indicate some of the underlying factors.

In 2004, Boyd and Gopou invented a hair sculpting tool, the NuDred Hair Sponge, used for styling dreadlocks. “It’s a product that you use to style very curly hair and kind of start dreads,” Goodman says. “And it can do in minutes what people used to do in hours because you would have to twist each piece of hair by hand.”

When the two sought legal advice on patenting, they faced the reality that white men form the vast majority of practitioners in the field. In the end, Boyd and Gopou felt their patent application did not “necessarily emphasise” the novelties of their tool, Goodman says. The patent they eventually secured, she adds, was “only for the method of using the product and not the product itself, so it’s easier for people to produce knock-offs in the United States and not get in as much trouble with litigation”.

Gender and race-based patent gaps potentially diminish “international competitiveness”, says Gauri Subramani, an assistant professor of management at Pennsylvania’s Lehigh University. The US needs to “mine its full talent pool”, Subramani adds. “If you’re just sampling from 60 per cent of the population, you’re missing out on things that the other 40 per cent of the population might develop that could be good for the economy.”

A likely consequence of the gaps is that fewer inventions benefit women and minorities. Rembrand Koning, an associate professor at Harvard Business School, used text analysis of all US biomedical patents filed from 1976 to 2010, to show that all-female inventor teams are 35 per cent more likely than all-male teams to focus on women’s health. “Who benefits from innovation depends on who gets to invent,” wrote Koning and co-authors in Science in June 2021.

Subramani has found that a big part of the gender gap could be closed by addressing the differences between men and women in responses to early patent application rejections by the USPTO. She and co-authors evaluated the outcomes of almost 1mn patent applications in the US from 2001 to 2012 and found that “women are less likely to continue in the patent process after receiving an early rejection”.

If you’re just sampling from 60 per cent of the population, you’re missing out on things that the other 40 per cent of the population might develop that could be good for the economy

They added: “Roughly half of the overall gender gap in awarded patents during this period can be accounted for by the differential propensity of women to abandon applications.” 

Applicants who have access to a lawyer, or have a company affiliation, are more likely to persist despite initial rejections, Subramani says. She has welcomed a USPTO programme matching applicants with pro-bono legal counsel.

The USPTO increased its funding for these counsel by 40 per cent, to $1.2mn, in 2022, according to its director Kathi Vidal, in a response to an inquiry last year by US Senator Elizabeth Warren and US Representative Sheila Jackson Lee regarding how the patent office was addressing the gap. 

Generative artificial intelligence tools could also lead to a more diverse pool of patent recipients, lawyers suggest. Claude.ai, the large language model built by AI start-up Anthropic, already “does a pretty good job” of evaluating whether a patent might have been denied based on an inventor’s race, or invention user’s race, says Damien Riehl.

A technology lawyer, Riehl has launched a searchable platform for prior art patent claims called “All the Patents”, which aims to thwart efforts by individuals who seek to patent an artwork that is already invented and patented. He also participates in a legal alliance developing standards for organising and classifying legal data.

Generative AI could eventually assist the USPTO, or others, in developing tools to help patent applicants better refine applications and respond to initial rejections.

Colleen Chien, a law professor at the University of California, Berkeley, who has co-authored a soon to be published paper on AI’s role in boosting patent quality and equity, recommends that the USPTO work with private software companies to develop cheap, possibly free, generative AI-based tools to help patent seekers with limited experience of the process.

I don’t see technology as a way to fix bias

But other researchers remain unconvinced about generative AI as the panacea. “I don’t see technology as a way to fix bias,” says Goodman.

Mike Teodorescu, an assistant professor at the University of Washington’s Information School, expresses similar doubts. He studies disparities in patents issued but says he would want any supposed generative AI solutions to be carefully measured for effectiveness.

However, technology that assists and lowers costs for inventors who seek patents without the help of a lawyer will benefit women filers more than men, argues Charles de Grazia, an assistant professor at École de Management Léonard de Vinci in Paris. He is co-author, with Teodorescu, of a 2022 research paper on closing the gender gap in patenting. In their study, women inventors — specifically those seeking patents without a lawyer’s help — benefited from assistance about 33 per cent more than men, de Grazia says.