All posts by Jason Rantanen

About Jason Rantanen

Jason is a Law Professor at the University of Iowa College of Law.

Guest Post: Diversity Pilots Initiative Comment on Proposed Changes to PTAB Practice

Guest post by Ashton Woods, a JD candidate and member of the Juelsgaard Intellectual Property and Innovation Clinic at Stanford Law School. This post is part of a series by the Diversity Pilots Initiative, which advances inclusive innovation through rigorous research. DPI will be hosting its second conference at Emory University Law School in Atlanta on Friday, September 20, 2024. Indicate your interest by signing up here.

On February 21, the USPTO issued a Notice of Proposed Rulemaking for Expanding Opportunities to Appear Before the Patent Trial and Appeal Board (PTAB), and DPI filed one of seven comments on the proposal. DPI’s full comment can be found here.

Currently, parties appearing before the PTAB who are represented by counsel must designate lead and backup counsel. Lead counsel must be a USPTO-registered practitioner, meaning that they have technical training and have passed the registration exam (commonly known as the “patent bar” exam). Backup counsel may be non-registered if they are recognized pro hac vice. Under the Proposed Rule, counsel can switch roles, with a non-registered practitioner acting as lead counsel and a registered practitioner acting as backup counsel. Additionally, parties who can show good cause, including financial hardship, can waive the backup counsel requirement, though the party’s sole counsel must still be a registered practitioner. Finally, the Proposed Rule streamlines the pro hac vice recognition process for non-registered practitioners, though they still must be accompanied by a registered practitioner in the lead or backup role.

As explained in more detail in the full comment, DPI views the Proposed Rule as a modest step toward reducing the accessibility gap for potential patentees, patent practitioners, and patent challengers. The goal of the Proposed Rule is laudable, and it may provide a solid foundation for future efforts to diversify the Patent Bar and the patent system more broadly—if it can effectively expand the pool of eligible practitioners in proceedings before the PTAB, the Proposed Rule may support wider USPTO efforts to increase the participation of underrepresented communities in the innovation ecosystem.

Still, the Proposed Rule does not address all of the structural barriers within the patent system that continue to burden diversification efforts at the USPTO. Existing barriers, such as the technical training requirement and the patent bar exam, substantially narrow the class of patent practitioners. This is particularly troublesome considering that federal courts do not subject litigators to these standards—they impose no registration requirement or backup counsel requirement. Currently, there is no rigorous evidence to support these restrictions as necessary, rather than overly burdensome, in promoting competent, or even fantastic, representation before the PTAB.

DPI urges the USPTO to collect the empirical evidence necessary to ensure that USPTO initiatives are well-suited to promoting the goals of the Proposed Rule and the USPTO more broadly. The comment sets out exemplary data collection methods and key data points on PTAB filings and proceedings for the USPTO’s consideration. The comment urges the USPTO to affirmatively collect this data to rigorously assess the impact of the Proposed Rule, and other diversity initiatives, on inclusivity and accessibility at the USPTO.

DPI’s full comment on the USPTO’s Notice of Proposed Rulemaking for Expanding Opportunities to Appear Before the Patent Trial and Appeal Board can be found here. To stay informed about related work, sign up for DPI research updates by emailing


Guest post by Profs. Chien and Grennan: Unpacking the Innovator-Inventor Gap: Evidence from Engineers

By: Colleen V. Chien, Professor of Law at the University of California, Berkeley School of Law and co-director of the Berkeley Center for Law and Technology, and Jillian Grennan, Associate Professor of Finance and Sustainability at the University of California, Berkeley Haas School of Business. This post is part of a series by the Diversity Pilots Initiative. The Initiative will be hosting its second conference at Emory University Law School in Atlanta on Friday, September 20, 2024. Indicate your interest by signing up here.)

Which IP professionals ascend to partnership or top counsel roles? Which professors publish in the top journals? And which innovators become inventors? This question of who among lawyers, academics, or innovators reaches the next milestone in the progression of a career is relevant in many settings. It has been a central focus in the world of innovation since USPTO’s Director Kathi Vidal’s urgent call to ensure that we “get everyone off the bench” in order to solve world problems and foster economic prosperity.

This call is motivated by the observation that while women comprise 35% of the STEM workforce, they make up only 13% of inventors; Black professionals represent 9% of STEM workers but only 1.2% of inventors. What explains this innovator-inventor gap, the reduced rate at which underrepresented innovators become inventors?  Just as lawyers of varying backgrounds do not equally ascend in firms – with women comprising a slight majority of associates but just 24% of equity partners – the journey from conceiving an idea to becoming a named inventor on a patent is not just a matter of technical merit, but, rather, is significantly influenced by the broader work environment.  Because the progression from innovator to inventor happens largely behind closed, corporate doors, this critical gap has largely been overlooked and its causes, largely unexplored, despite technological innovations’ critical role as a driver of economic growth.

In our study, “Unpacking the Innovator-Inventor Gap: Evidence from Engineers,” which reports on a survey of close to 4,000 innovators across 4 firms, and collaborating firms’ invention disclosure databases, we use detailed administrative and survey data to unpack the forces underlying this gap and provide novel insights into the invention process, how it is influenced by firm policies, and its variation by demographics.  The study’s unique empirical data reveal that inventorship, far from being a rote translation of ideas into patents, reflects an opt-in, competitive process, in which only one-third of engineers engage with their firm’s formal invention submission processes, and only half of these submissions progress to the patent application stage.  Strikingly, participation rates for women at each step of this journey are significantly lower.

A closer examination of the data uncovers additional nuance. While the gender gap is pronounced at all stages of the patenting process, engineers from underrepresented ethnicities exhibit higher engagement levels in both initial ideation and later stages, suggesting distinct experiences and that the barriers and incentives likely differ across demographic groups.  An important take-away for practitioners is that one-size fits all policies to encourage inclusive innovation may not work, rather targeted strategies to address the specific hurdles faced by women and underrepresented ethnicities are warranted.

We gain insights into the process of inventing and the challenges engineers face in going from having an innovative idea to becoming a named inventor by interviewing thirteen patent professionals and the resulting survey of engineers across various collaborating high-tech firms.  The next two figures highlight a key finding takeaway from our study.  Namely, that the path from ideation to patenting is a process fraught with potential frictions attributable to firm policies and systems, cultural norms, and personal experiences.

Figure 1. Variations in the invention submission process across firms

Figure 1 reveals the varied approaches employed by firms in the invention submission process. This figure captures the essence of the diverse practices across different organizations, showcasing the differences in how ideas are collected, reviewed, and iterated upon based on feedback. It serves as a window into the dynamics between engineers, patent professionals, and patent review boards.

Figure 2. Factors influencing the invention submission process

Figure 2 complements Figure 1 by delineating the myriad factors at both the firm (external) and individual (internal) levels that influence an engineer’s decision to submit an inventive idea. It categorizes firm-level factors into informal and formal institutions, such as culture and management practices, while individual-level traits include personal characteristics, early-life experiences, and desires for work-life balance.

Together, these figures underscore the need for a holistic approach to fostering an inclusive inventive environment, one that not only encourages the generation of new ideas but also supports their refinement and submission through processes that are equitable and transparent. As high-tech firms reassess their internal policies and practices, it is helpful to know the specific factors engineers perceive to be working for and against the invention process, in order to cultivate an environment where innovation can thrive.

Using well-established survey techniques, we determine a relative pecking order of factors that contribute to the innovator-inventor gap.  The hierarchy among factors contributing to the innovator-inventor gap as revealed by engineers is management, motivation, culture, the invention submission and review process, mentoring, peer influence, and last personal characteristics. Again, though, we observe that women and URMs perceptions of the factors facilitating invention are distinctive.

For instance, leadership and management practices influence the innovation-invention gap. Better management is the top factor that would increase idea submission. The disparity in engineers’ perception of management is notable, with women and URGs less likely to view management as supportive in the inventing process. Additionally, motivational factors, both extrinsic and intrinsic or pro-social, significantly influence idea submission, with a notable difference in URGs’ desires for creating social value.  Third, corporate culture, especially in terms of aspirational values like collaboration and integrity appear to contribute to the innovator-inventor gap. Female engineers are significantly less likely to (i) experience managers explaining important details, (ii) have people with whom to collaborate, and (iii) experience managers being ethical and making fair decisions. Overall, the creation of a pecking order underscores that the gap is linked to changeable aspects of companies, like management practices and corporate culture, rather than unique individual determinants.

Why is it important to address the inventor-inventor gap?  The final part of our study, in which we examine the patents granted not only to firms in our study, but all U.S. public firms, supplies one answer. We find that patents with female inventors working at firms with meaningful frictions in the innovation process, as proxied by ineffective culture and poor management, are of higher quality and more likely to be in the top 10 percent of citations than the patents of their male counterparts. This outcome is consistent with a model we present which predicts that the costs females face in refining the signal of the patent-worthiness of their inventive idea are higher because of the practices such as inadequate feedback early in the submission process or a lack of peers to collaborate with. Therefore, developing and testing pilots to address these types of information barriers is a particularly promising direction for research and policy.

In conclusion, “Unpacking the Innovator-Inventor Gap: Evidence from Engineers” presents new evidence on the competitive, opt-in nature of the invention process inside high-tech firms and determinants of the innovator-inventor gap, where STEM professionals transition unevenly to being named inventors. Most previous work on inventors focuses on factors influencing the extensive margin like access to STEM education or factors influencing the intensive margin like financial incentives. Our results point to a new, important locus point for inclusive innovation – the workplace and – frictions in the invention process within firms – as a critical factor that determines both who becomes an inventor and the quantity and quality of inventions they pursue. These frictions in the invention process help explain why there is a more pronounced innovator-inventor gap for females. Importantly, we provide evidence that these frictions are so costly to females that they prevent high quality and potentially impactful ideas from being disclosed to society.

By implementing targeted interventions and fostering a culture of inclusion, high-tech firms can unlock the full potential of their diverse workforce, driving forward the frontiers of innovation and securing their competitive edge in the global marketplace. As this analysis has shown, the path forward requires a commitment to systemic change, guided by empirical evidence and grounded in a deep understanding of the challenges faced by underrepresented inventors.

Three main takeaways:

  1. Innovator-Inventor Gap: Only one-third of engineers submit ideas through their firms’ formal invention processes, and just half of these become patent applications. Women participate significantly less at each stage in the journey from potential innovator to patented inventor.
  2. Pecking Order of Factors Influencing the Gap: One key advantage of using a survey to unpack the forces driving the innovator-inventor gap is we hear directly from the engineers who are driving technological progress about their views of the inventive process at their firms.  The hierarchy among factors contributing to the innovator-inventor gap as revealed by engineers is management, motivation, culture, the invention submission and review process, mentoring, peer influence, and last personal characteristics.
  3. Economic implications of the Gap: Analysis of citation patterns suggests that high-quality patents are lost in firms with larger gender gaps. Female inventors at firms with more frictions in the invention process receive significantly more forward citations and are more likely to have their patents be in the top decile of citations, consistent with the marginal lost inventions from women being of high quality.

Read the full paper here: Chien and Grennan, Unpacking the Innovator-Inventor Gap: Evidence from Engineers

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Guest post by Lolita Darden: PPAC’s Bold Strategy to Transform Patent Inclusion

Guest post by: Lolita Darden, Chair, U.S. Patent and Trademark Office Patent Public Advisory Committee; Managing Partner, Darden Betts Strategic Intellectual Property Counselors; Visiting Associate Professor, George Washington University Law School.  This post is part of a series by the Diversity Pilots Initiative, which advances inclusive innovation through rigorous research. The first blog in the series is here and resources from the first conference of the initiative are available here.)

This year the Patent Public Advisory Committee, also known as PPAC, turns 25.  Established in 1999, PPAC is a 9-member advisory committee appointed by the Secretary of Commerce. Each member serves a 3-year term, and I am starting my second year. The primary purpose of the Committee is to review the policies, goals, performance, budget, and user fees of the USPTO with respect to patents. The Committee is also charged, by statute, to advise the Director of the USPTO on these matters and to prepare a report to Congress on the advisory actions the Committee has undertaken during the calendar year. You can find the 2023 PPAC Annual Report

As the new Chair of PPAC, I look forward to collaborating with the Committee and Director Vidal to serve the interests of the American people and the IP community in ways that enhance national and global competitiveness, accelerate growth in GDP, and drive innovation and entrepreneurship.

For those of you not familiar with PPAC, another function of the Committee is to provide the Director with feedback from our constituents about initiatives being undertaken by the USPTO with respect to patent matters. In that regard, I view my role as Chair as a facilitator, working closely with Committee members to provide advice and counsel to the Director based on feedback received from our respective constituencies.

This year, PPAC will continue to work with Director Vidal to link patents and invention more explicitly to national competitiveness, through both increasing invention activity and making patent protection available to more inventors around the U.S. It is widely known that innovation is a key driver of competitiveness and long‐term economic growth. It is also known that patents are important measures of innovation. Recent studies show that significant increases in U.S. innovation are achievable by encouraging inclusive innovation, which involves bringing under-represented individuals and communities into the innovation ecosystem. For example, ,” which represents substantial potential growth to the United States economy.

In my capacity as a private citizen and law professor, I have devoted countless pro bono hours assisting under-resourced inventors with protecting their rights in intellectual property, as well as educating them regarding the benefits of protection.  Research shows that the biggest deterrent to the pursuit of IP protections by individuals from historically resourced communities is awareness.  My vision for increasing the number of participants in the innovation ecosystem from under-resourced communities is education.  Ideally, law schools and law firms would pledge to offer community-based programs educating inventors from under-resourced communities about IP basics, i.e., what is protectable, how it can be protected, and pro bono resources for pursuing protection.  I am excited to continue this work of raising awareness in an advisory role as Chair of PPAC.

One of the interesting things about PPAC is that we are composed of individuals with different backgrounds and views on the U.S. patent system and how it should operate.  Nevertheless, we have been able to find common ground in thinking about how patents can best help the nation.  In addition to inclusive innovation, the Committee will continue to work to support the USPTO’s efforts to maintain a patent system that best serves the American people and the IP community.

Three main takeaways:

  1. Role of PPAC: PPAC, established in 1999, is a 9-member advisory committee appointed by the Secretary of Commerce, serving 3-year terms. Its primary function is to review and advise on the policies, goals, performance, budget, and user fees of the USPTO with respect to patents, and to prepare an annual report to Congress on its advisory actions.
  2. Focus on National Competitiveness and Inclusive Innovation: PPAC aims to enhance national and global competitiveness by linking patents and invention more closely, promoting increased invention activity, and expanding patent protection to more inventors across the U.S. The committee emphasizes the importance of inclusive innovation, highlighting that significant increases in U.S. innovation and economic growth could be achieved by encouraging participation from under-represented groups in the innovation ecosystem.
  3. Education for Under-resourced Inventors: PPAC also aims to raise awareness and educational resources for under-resourced inventors about IP protection. This includes the vision to work with law schools and law firms to provide community-based programs on IP basics, aiming to increase the number of participants from under-resourced communities in the patent ecosystem.

 If you find this insight compelling and want to stay informed on the latest developments, sign up for the DPI research updates today!

Guest post by Prof. Holbrook: Extraterritoriality and Patent Damages Under § 271(a)

Guest post by Tim Holbrook. Robert B. Yegge Endowed Distinguished Professor of Law and Provost’s Professor, University of Denver Sturm College of Law.

United States patents are generally territorial.  Their exclusive rights only operate within the United States and its territories.  Or so one may think reading the Patent Act.  Moreover, in a global marketplace, the territorial nature of intellectual property rights can create challenges. It would be simpler for a patent holder to just use the U.S. patent to cover foreign activity. This is especially true if a domestic act of infringement has spillover effects into other countries.

So, when – if ever – can a patent owner receive damages for foreign activity that may flow from acts of domestic infringement?

The Supreme Court answered that question   (more…)

Guest Post: Where Are the Patent Judge Shoppers Going?

By Paul R. Gugliuzza and J. Jonas Anderson

In the past few weeks, more and more people outside of patent law have learned about ‘judge shopping’—quirks in procedural rules that allow plaintiffs to pick not just a court but the individual judge who will hear their case.

Republican state attorneys general and conservative activists have been exploiting those rules to challenge federal government policies on abortion, immigration, gun control, transgender rights, and more in front of sympathetic, Republican-appointed judges, primarily in Amarillo and Wichita Falls, Texas.

Last month, the Judicial Conference of the United States (a group of judges who oversee the operation of the federal courts) issued a new policy urging courts to adopt case assignment procedures that prevent judge shopping, especially in cases challenging federal law.

Predictably, the beneficiaries of judge shopping—namely, Republicans—decried the new policy as politically motivated and urged district courts to ignore it. Democrats, for their part, (more…)

Federal Circuit Decisions – 2023 Stats and Datapack

By Jason Rantanen

It’s time for the annual Federal Circuit statistics update! As I’ve done for the last few years, below I provide some statistics on what the Federal Circuit has been doing over the past year. These charts draw on the Federal Circuit Dataset Project, an open-access dataset that I maintain that contains information on all Federal Circuit decisions and docketed appeals. The docket data is collected directly from PACER, and the court’s decisions are collected from via its RSS feed. My research team then uses a combination of algorithmic processing via Python code and manual review to code information about each document

One of my goals with this dataset is to make it publicly accessible so that anyone can use it in their own research. A complete copy of this year’s release is archived at  We also continue to make a historic version of the dataset available through an RShiny user interface available through, but as will no longer be updating the RShiny interface with new data.  A copy of the codebooks are available at these locations as well. In addition, if you are a researcher who would like help using the dataset, please reach out to me – I’m happy to help make it easier to work with the data or answer questions about it.

Onto the data!

Federal Circuit decisions by origin and year

Figure 1

Figure 1 shows the number of Federal Circuit opinions and Rule 36 summary affirmances by origin since 2010. These represent individual documents (i.e.: a single opinion or Rule 36) rather than docket numbers (which is how the Federal Circuit reports its metrics).

Opinions vs. Summary Affirmances

Once again, the highest number of merits decisions arose from the PTO, and the overall number of merits decisions was about the same as in 2022. However, the number of decisions arising from the district courts continued to decline: the court issued just 95 merits decisions in appeals arising from the district courts in 2023, as compared with 117 in 2022 and a high (or this period) of 238 in 2014. The direct cause of fewer decisions isn’t a mystery: there were only 286 appeals arising from the district courts docketed in 2021 as compared with over 500 a year in the period 2013-2015. But the bigger point is that we’re currently seeing fewer appeals (and decisions) arising from the district court while the number of appeals and decisiosn from the PTO remains high.

Types of CAFC decisions arising from DCT and USPTO by year

Figure 2

Figure 2 shows the number of opinions versus Rule 36 summary affirmances arising from the District Courts and PTO. The court continued its downward trend in the use of Rule 36 affirmances. Even as the total number of merits decisions arising from the District Courts and PTO increased from 264 (2022) to 285 (2022), the number of Rule 36 summary affirmances dropped from 86 (2022) to 81 (2023).  In relative terms, just 15% of the decisions arising from the district courts were disposed of through a summary affirmance while 35% of the Federal Circuit’s decisions arising from the PTO were summary affirmances. These are the lowest rates that I’ve observed for at least the last fifteen years. Kudos to the Federal Circuit for its increased rate of opinions.

What about the type of opinion that the court is issuing? It turns out that this increased rate of opinions is coming in the form of more nonprecedential opinions – and in the case of the PTO, quite a few more nonprecedential opinions.

Type of Federal Circuit opinion by origin and year

Figure 3


Figure 4 shows the general disposition of Federal Circuit appeals – in other words, whether the panel affirmed, affirmed-in-part, reversed-in-full, etc.

General dispositions of appeals arising from PTO and District Courts per year

Figure 4

Last year I observed that the Federal Circuit’s affirmance rate for appeals arising from the District Courts dropped compared to the preceding few years.  That affirmance rate rose back to historic norms in 2023: the court affirmed-in-full in appeals arising from the district courts 75% of the time in 2023. (The purple line indicates the average 68% affirmance-in-full rate over the 12-year time period). As a reminder, these graphs do not include petitions for writs of mandamus. The affirmance rate for appeals arising from the PTO remained consistent: 83% in 2023, as compared with a 14-year average of 80%.

In addition, the Federal Circuit’s website now appeal terminations even if that termination takes the form of something other than an opinion or Rule 36 summary affirmances.  Figure 5 shows the distribution of terminating documents for 2023. About 56% of terminating documents were opinions or Rule 36 summary affirmances. Most of the remainder were dismissals (which includes voluntary dismissals), with a small number of transfers and remands without opinion (typically these occur through orders).

Figure 5

As with the previous figures, the record unit for Figure 5 is a document – i.e.: an opinion or order. It’s possible for a single document, such as an opinion, to decide multiple appeals.

In comparison, Figure 6 shows the number of docketed appeals by origin. As Figure 5 shows, there was a big drop in appeals filed in 2021, followed by an increase in appeals filed in 2022 and then again in 2023.

Figure 6

Note that our statistics on appeals filed is slightly different from the counts that the Federal Circuit reports (even if you look at the data on a Financial Year (Oct – Sept) basis rather than a calendar year basis. My understanding is that this is because the Federal Circuit treats an appeal that is reinstated as a separate count in its numbers, while we treat that as a single appeal. The differences are minor, however.

Miscellaneous Dockets

Finally, what about Petitions for Writs of Mandamus? These, along with Petitions for Permission to Appeal, are shown below. Figure 7 indicates that the number of decisions on Petitions for a Writ of Mandamus went up slightly last year, although nothing like 2021.

Figure 7

Focusing in on the 39 decisions involving Petitions for a Writ of Mandamus arising from the district courts, the Federal Circuit granted in whole or part 7  (21%), denying or dismissing the remaining 32. This is lower than the grant rate for 2022 (37%) or 2021 (43%). Of those 7 granted petitions, 6 arose from the W.D. Tex. (out of 23 total terminations of petitions for Writs of Mandamus arising from W.D. Tex.).

Replication materials for blog post: Rantanen, Jason, 2023, “Replication Data for “Federal Circuit Decisions Stats and Datapack””,, Harvard Dataverse, V2

Document dataset: Rantanen, Jason, 2021, “Federal Circuit Document Dataset”,, Harvard Dataverse, V5, UNF:6:IFV+cSbcrBOMsCWg0GoHGg== [fileUNF]

Docket dataset: Rantanen, Jason, 2021, “Federal Circuit Docket Dataset”,, Harvard Dataverse, V5, UNF:6:mgpnlh/ZznOQNIkSPHe4Tg== [fileUNF]

Guest Post by Prof Burstein: Sanctions & Schedule A

By Sarah Burstein, Professor of Law at Suffolk University Law School

Jiangsu Huari Webbing Leather Co., Ltd. v. Joes Identified in Schedule A, No. 1:23-cv-02605 (SDNY Jan. 2, 2024), ECF 76.

The Schedule A litigation phenomenon continues apace in the Northern District of Illinois, a court that has become, in the words of Judge Seeger, “an assembly line for TROs.” But Schedule A litigation is not confined to Chicago. It has spread, perhaps most notably to the Southern District of Florida and the Southern District of New York.

One recent decision out of New York merits closer attention. In this case, as in most Schedule A cases, the plaintiff was able to obtain an ex parte TRO that included an order instructing Amazon to freeze the defendants’ seller accounts. The order also required the plaintiff to post a bond of $20,000 “for the payment of any damages any person may be entitled to recover as a result of an improper or wrongful restraint ordered.”

The plaintiff sued 163 defendants, alleging that each was liable for infringing a utility patent directed towards “a rectangular-shaped buckle-and-belt mechanism” for “an outdoor exercise product.”

At the TRO stage, the plaintiff’s “infringement evidence chart” consisted of a series of screenshots (many of them low-resolution screenshots) of the accused products. Here’s an example of all of the evidence submitted in that chart with respect to one of the defendants:

As per usual in a Schedule A case, the defendants did not find out about the case until after their accounts were frozen. When the plaintiff moved to extend the TRO, multiple defendants appeared to object. Judge Rochon refused to extend the TRO and the plaintiff voluntarily dismissed the case.

Two of the defendants, Hyponix and NinjaSafe, moved for bond damages, sanctions, and fees. They argued that the plaintiff had filed to conduct a sufficient pre-suit investigation and had committed various acts of litigation misconduct. They further argued that they each suffered damages from being wrongfully enjoined.

Judge Rochon granted the defendants’ motions for bond damages but denied their motions for sanctions and fees. She agreed that the moving defendants had been wrongfully enjoined because “Hyponix has pointed to at least four elements of claim 1 of the ’673 patent that are not present in its product” and “Ninja Safe has also shown that its products may not infringe claim 1 and has raised questions of invalidity.” Accordingly, Judge Rochon granted each moving defendant bond damages, though less than they asked for: $3,682.28 for Hyponix and $14,641.51 for NinjaSafe.

But she refused to grant sanctions or fees, despite being “troubled by Plaintiff’s conduct in this case.” In particular, Judge Rochon noted the “‘clear discrepancies’ between the protected elements of the ’673 Patent and the products of many of the parties against which Plaintiff secured a TRO.” She also noted other instances of “possible misconduct,” including:

  • “Plaintiff represented that most of the 163 parties were difficult to find and contact. In practice, however, contact information for many of the parties was readily available. . . . Plaintiff does not indicate that it tried with any diligence to locate these parties before seeking a TRO.”
  • “The pace and prevalence of Plaintiff’s dismissals suggest to the Court that Plaintiff used Rule 41 as part of a broader strategy to freeze the accounts of its competitors, then withdraw its claim against any party that happened to object.”
  • “Plaintiff failed to provide Hyponix with documents necessary for its defense. . . . . Plaintiff claims, falsely, that Hyponix did not request these documents.”

(Emphasis added.) Despite all of this, Judge Rochon refused to sanction the plaintiff:

Despite these concerns, the Court does not lightly award sanctions and will not do so in this case. Plaintiff holds a valid patent for its Hanging Exercise Product, its claim was colorable against at least some of the parties, and it dismissed its lawsuit voluntarily at a very early stage in the litigation (presumably in light of the issues raised by the Court at the order to show cause hearing), before any of the defendants responded to the Amended Complaint. Defendants here were made whole for their losses under the bond. Although a close question, the Court exercises its discretion to deny Defendants’ request for sanctions under its inherent powers and 28 U.S.C. § 1927. . . . To the extent that Plaintiff and its counsel engage in similar misconduct in the future, however, the Court will not hesitate to impose sanctions.

As Professor Eric Goldman noted in this blog post, “it would not be lightly awarding sanction when a plaintiff has committed so many violations.” Two additional points stand out as well.

First, the fact that some of the infringement claims might be colorable does not change the fact that the plaintiff brought numerous claims that were not—including the claims brought against the moving defendants. If the plaintiff had sued Hyponix and NinjaSafe separately, would that have changed the court’s analysis? If so, why should the fact of mass joinder insulate the plaintiff from sanctions? Especially in light of the fact that it’s far from clear that any—let alone all—of the defendants were properly joined, as they sell different products and do not seem to be actually connected in any way. See 35 U.S.C. § 299. In any case, the fact remains that this plaintiff brought many claims that were not colorable and used the machinery of the federal judiciary to wrongfully enjoin competitors. That is what should matter in the sanctions calculus, not the fact that some of the other claims (against apparently unrelated defendants) might have potentially had merit.

Second, it is true that the plaintiff dismissed the case at what would be, in a regular case, “a very early stage in the litigation.” But in a Schedule A case, the TRO seems to be the whole game. The plaintiff gets a TRO with an asset freeze, then starts making settlement demands. At that point, the defendants generally either settle or default. It appears that these cases aren’t meant to proceed any further. And as the defendants’ submissions show, significant damage can be done in these cases, even in a short period of time. (One also wonders how much money the plaintiff may have been able to extract in settlements before dismissing the case.)

In the end, the decision to sanction and to award fees is left to the discretion of the judge. And while it is encouraging to see Judge Rochon recognize the damage caused by acts that have become common in Schedule A cases (e.g., using FRCP 41 to dismiss defendants who fight back), it is discouraging to see a result that will only serve to further disincentivize Schedule A defendants from fighting back.

Once a judge grants a TRO with an asset freeze, the deck is heavily stacked against the Schedule A defendants. Defendants have strong incentives to settle, even when the cases against them lack merit. In many cases, it’s just too expensive to fight back, especially when your assets have been frozen.

If judges were willing to sanction plaintiffs—or at least shift fees—when Schedule A defendants were wrongfully restrained, that would do a lot to help level the playing field and incentivize the plaintiffs to bring better claims.

Without fee shifting or sanctions, the cost of bringing a nonmeritorious claim in a Schedule A case is virtually zero, while the harms to defendants who are wrongfully restrained—even for a short time—can be devastating. As Judge Hunt has noted, “the extraordinary remedy of freezing all [the defendants’] assets without notice” can “potentially ruin[] a legitimate business.”

Plus, as Casey Hewitt noted on Mastodon, Schedule A “defendants have no choice but to litigate, have no option to meet and confer and avoid a lawsuit . . . They did not ignore demand letters or refuse to negotiate or discuss alleged infringement.” But once they find out that their assets have been frozen, they have to “hire expensive IP litigators or they will lose their businesses.” In these circumstances, it seems like fee shifting for wrongfully enjoined Schedule A defendants should be the norm, not the exception.

Yes, it’s true that a presumption in favor of fee shifting would be a departure from normal federal court practice. But courts routinely use their discretion to grant procedural departures to Schedule A plaintiffs—e.g., email service, ex parte asset freezes, mass joinder upon conclusory (and in many cases, dubious) allegations. Perhaps it is time for judges to start using their discretion to make routine departures for Schedule A defendants, too.

Additional observations:

  1. This case is a good example of why patent litigation is a poor fit for the Schedule A litigation model. I’ve written here before about how design patent infringement is ill-suited to ex parte adjudication; so too is utility patent adjudication. If judges are going to keep allowing the Schedule A model in patent cases (and they don’t have to do so, in these cases or in any others), they should consider making it a regular practice to special masters to help analyze the infringement evidence at the TRO stage. And they should, at a minimum, require an individualized claim chart for each and every defendant.
  2. It is far from clear that Judge Rochon actually had the power to freeze these defendants’ assets in the first place. As Judge Kendall noted in a recent order, 35 U.S.C. § 284 “does not provide for the equitable relief of accounting and profits,” which is seems to be the standard basis for asset freezes in other types of IP cases. Furthermore, as Judge Seeger has noted, “Schedule A plaintiffs typically don’t request and receive equitable monetary relief” at the end of their cases, even when equitable relief is available. Other judges might be well-advised to start questioning whether they should use their discretion to keep granting these types of asset freezes, even in cases where a remedy of equitable disgorgement is actually available.

For more on the Schedule A phenomenon, see:

Guest post by Gugliuzza, Goodman, & Rebouché: Inequality and Intersectionality at the Federal Circuit

By: Paul Gugliuzza is a Professor of Law at Temple University Beasley School of Law, Jordana R. Goodman is an Assistant Professor of Law at Chicago-Kent College of Law and an innovator in residence at the Massachusetts Institute of Technology, and Rachel Rebouché is the Dean and the Peter J. Liacouras Professor of Law at Temple University Beasley School of Law. This post is part of a series by the Diversity Pilots Initiative, which advances inclusive innovation through rigorous research. The first blog in the series is here and resources from the first conference of the initiative are available here.

The ongoing reckonings with systemic racism and sexism in the United States might seem, on first glance, to have little to do with patent law. Yet scholarship on racial and gender inequality in the patent system is growing. Recent research has, for example, shown that women and people of color are underrepresented among patent-seeking inventors and among lawyers and agents at the PTO. In addition, scholars have explored racist and sexist norms baked into the content of patent law itself.

In a new article, we empirically examine racial and gender inequality in what is perhaps the highest-stakes area of patent law practice: appellate oral argument at the Federal Circuit.

Unlike many prior studies of inequality in the patent system, which look at race or gender in isolation, our article looks at race and gender in combination. The intersectional approach we deploy leads to several new insights that, we think, highlight the importance of getting beyond “single-axis categorizations of identity”—a point Kimberlé Crenshaw made when introducing the concept of intersectionality three decades ago.

The dataset we hand built and hand coded for our study includes information about the race and gender of over 2,500 attorneys who presented oral argument in a Federal Circuit patent case from 2010 through 2019—roughly 6,000 arguments in total. Our dataset is unique not only because it contains information about both race and gender but also because it includes information about case outcomes, which allows us to assess whether certain cohorts of attorneys win or lose more frequently at the Federal Circuit.

Perhaps unsurprisingly, we find that the bar arguing patent appeals at the Federal Circuit is overwhelmingly white, male, and white + male, as indicated on the three figures below, which break down, in a variety of ways, the gender and race of the lawyers who argued Federal Circuit patent cases during the decade covered by our study. (Note that the figures report the total number of arguments delivered by lawyers in each demographic category. Note also that the number of arguments we were able to code for the race of the arguing lawyer was slightly smaller than the number of arguments we were able to code for the gender of the arguing lawyer, so the total number of arguments reported on the figures differ slightly.)

Federal Circuit Patent Case Oral Arguments, 2010-2019

What is surprising, however, is that the racial and gender disparities illustrated above dwindle when we look only at arguments by lawyers appearing on behalf of the government, as shown on the three figures below, which limit our data only to arguments by government lawyers. (About 75% of those government arguments were by lawyers from the PTO Solicitor’s Office; the others came from a variety of agencies, including the ITC and various components of the DOJ.)

Federal Circuit Patent Case Oral Arguments, 2010-2019 – Government Lawyers Only

In fact, among lawyers appearing on behalf of the government, the proportion of arguments by women, people of color, and women of color exceeded the proportion of women, people of color, and women of color in the total population of practicing lawyers—that is, all lawyers, not just patent lawyers. Among private sector patent lawyers, by contrast, the proportion of arguments by women, people of color, and women of color was much lower than the proportion of women, people of color, and women of color in the total population of lawyers, as shown on the table below.

To restate those findings in a slightly different fashion: we find that, among lawyers arguing patent cases at the Federal Circuit, a government lawyer is 2.3 times more likely than a private-sector lawyer to be a person of color, over 5 times more likely to be a woman, and over 10 times more likely to be a woman of color.

Remarkably, the racial and gender disparities we find—particularly among Federal Circuit lawyers from the private sector—bear no relation to attorney performance. As we explain at length in our article, appellants in Federal Circuit patent cases win about a quarter of the time and appellees win about three-quarters of the time—with no significant differences based on race, gender, or the intersection of the two.

There is, however, one group of lawyers who do win more frequently than all others: a small group of 65 private-sector lawyers who argue patent cases at the Federal Circuit more than anyone else—on average, at least once a year. When seeking to overturn a judgment of a district court, the PTO, or the ITC in a patent case, those frequent Federal Circuit advocates succeed 41% of the time, as compared to a 24% win rate for the other private-sector lawyers in our dataset. That finding adds a patent-law angle to a growing literature documenting the remarkable influence a small group of specialist appellate litigators (mostly white and male, and almost all at the wealthiest, most prestigious law firms in the world) have had on the U.S. legal system.

We conclude our article with some ideas about how to make the patent system, and high-level law practice generally, more diverse and inclusive. In the main, we think our findings about the large proportion of women, people of color, and women of color arguing patent appeals for the government undercuts the oft-mentioned “pipeline” explanation for a lack of diversity in patent law—that is, the idea that women and people of color are absent because they lack scientific or technical backgrounds.

Not only is that explanation based on outmoded conceptions of what patent practice entails—especially patent litigation—our data suggest there are women, people of color, and women of color arguing patent cases at the highest level—they are just not getting many opportunities to do so in law firm practice. Indeed, though the number of government arguments in our dataset (567) is less than one-tenth the number of arguments by private-sector lawyers (5825), the government had a greater number of arguments presented by women of color (65) than the private sector did (60).

The inequalities we find among private-sector patent lawyers, and the lack of correlation between those inequalities and case outcomes, suggest that entry into the upper echelon of patent practice is about more than winning and losing in the courtroom. As a recent ABA report on “interrupting bias” suggests, to really make progress with race and gender equity, we must focus on the structural causes of disadvantage and exclusion. For instance, law firms can use concrete, objective metrics to track the effects of diversity efforts, to ensure promoting diversity is rewarded in performance reviews, and to ensure no demographic group is being treated differently in assignments, evaluation, and compensation.

In short, broadening the population of lawyers who make it to very top of appellate practice will require a more deliberate approach than “add diversity and stir”; it will require disrupting the rules and norms that exclude and undermine outsiders to the status quo.

Three main takeaways:

  1. Racial and Gender Disparities in Patent Law Practice: The study highlights that the demographic of attorneys arguing patent appeals at the Federal Circuit is predominantly white and male. This disparity is evident when compared to the total population of practicing lawyers. However, an interesting contrast is observed in government lawyers, where the proportion of arguments by women, people of color, and women of color exceeds their proportion in the overall lawyer population.
  2. No Difference Between Attorney Demographics and Case Outcomes: Despite the noted disparities in racial and gender representation, these factors do not correlate with the success rates in court. The data indicates that appellants in Federal Circuit patent cases win roughly a quarter of the time and appellees three-quarters of the time, irrespective of the attorney’s race, gender, or their intersection.
  3. Need for Structural Changes to Enhance Diversity: The post concludes that the disparities in private-sector patent law practice and the absence of correlation with case outcomes point to a need for more than just increasing diversity. There is a call for addressing structural causes of disadvantage and exclusion in the legal profession. This includes implementing concrete measures in law firms to track and promote diversity, ensuring fair treatment in assignments, evaluations, and compensation, and disrupting norms that perpetuate the status quo, thereby broadening the population of lawyers in top appellate practice.

If you find this insight compelling and want to stay informed on the latest developments, sign up for the DPI research updates today!



Guest post by Heath, Seegert, & Yang: Open-Source Innovation and Team Diversity

Guest post by: Davidson Heath, Assistant Professor of Finance, Nathan Seegert, Associate Professor of Finance, and Jeffrey Yang. All authors are with the University of Utah David Eccles School of Business. This post is part of a series by the Diversity Pilots Initiative, which advances inclusive innovation through rigorous research. The first blog in the series is here and resources from the first conference of the initiative are available here.)

Diversity in innovation is essential. Varied perspectives, experiences, and skills foster creativity and problem-solving. Diverse teams are more likely to challenge assumptions, leading to novel solutions and breakthroughs. Variety in tastes and background can help identify and serve a wide range of user needs.

Open-source software (OSS) is often praised for its ability to foster innovation. Part of the rationale is that OSS allows for open collaboration, enabling continuous improvement and adaptation by a diverse community. For example, a vast garden of open-source large language models such as Meta’s Llama 2 are flourishing and are projected to surpass closed-source AI in the near future.

Figure 1. Capabilities of Machine Learning Models: Open vs. Closed-Source

The open-source collaborative model has accelerated innovation in many fields. Yet to date, we know little about how these teams form, and how their diversity impacts productivity. How does the diversity of OSS teams compare to the overall contributor pool? And what are the productivity outcomes for OSS teams that increase their diversity compared to those that do not?

In our new paper, entitled “Team Production and the Homophily Trap: Evidence from Open-Source Software,” we examine the dynamics of diversity and productivity in the OSS setting. The key novel concept that we introduce is homophily – the tendency of individuals to associate with others who are similar. This tendency, while natural, has important implications for the diversity and productivity of OSS teams. By analyzing over 40,000 teams developing OSS projects over a ten-year period, we uncover two facts – (1) teams tend to be less diverse than the available pool of contributors, primarily due to homophily and (2) teams that add diversity have higher productivity, suggesting that other teams are “stuck” in an inefficient, low-diversity state. Strikingly, this pattern has been getting worse, not better, over time; as the coder population has expanded, average team diversity has actually fallen.

Figure 2. Trends over Time in Open-Source Coder Population and Team Diversity

This pattern, which we term the “homophily trap”, is detrimental to development and innovation. For those leaders working on software projects or within engineering, scientific and innovative teams, our study highlights the importance of the following questions: How can organizations avoid the homophily trap?  What specific strategies can be employed to attract and retain diverse team members? What gains can organizations expect to see from diversifying their teams?

Our study helps to answer some of these questions. First, we show that team diversity has large positive returns to productivity. We find that teams that do escape the homophily trap by increasing their diversity are more likely to continue to be actively developed; have more development activity, conditional on continuing; and attract a larger and more diverse userbase. These effects are especially strong for teams that start at lower levels of diversity, underlining the substantial untapped potential in diversifying team composition.

Second, our study provides suggestions and strategies for enhancing team diversity and escaping the homophily trap. Importantly, initiatives to increase the diversity of the overall pool of contributors can actually backfire because a more diverse pool gives teams more similar peers to assort with. To combat this tendency, teams need policies that directly encourage diversity at the team level. Such policies can break the cycle of homophily-based selection into homogeneous groups. To attract and retain diverse team members, it is important to implement inclusive recruitment practices and establish an environment that values diverse perspectives. Finally, educate your engineers. By promoting awareness of the benefits of diversity, it may be possible to avoid the homophily trap.

For engineers, scientists, and inventors, we believe the insights from our study highlight the crucial role of team diversity in driving innovation and productivity. Teams might prefer similar peers for ease of coordination and communication and might prefer to recruit known quantities from their social networks, but these benefits are smaller than the gains to productivity from a more diverse team.   And importantly, interventions targeted at increasing diversity on teams can yield improvements in both team diversity and project outcomes. This perspective is particularly relevant for organizations in settings where collaboration and innovation are paramount.

Three main takeaways:

  1. Diversity Drives Innovation: Diversity in teams fosters creativity and problem-solving. It is a positive input into innovative breakthroughs and addressing a wide range of user needs.
  2. The Homophily Trap: Our study uncovers a “homophily trap” in open-source software teams, where teams are less diverse due to a preference for similarity, limiting their potential. Quasi-experimental estimates suggest an increase in team diversity results in a 2.4 percentage point increase in the likelihood that a project remains active in the subsequent year. An increase in team diversity also leads to significant increases in the size and diversity of the project’s userbase.
  3. Strategies to Enhance Diversity: To mitigate the homophily trap, our study suggests promoting diverse team formation, targeting low-diversity teams in particular, and creating supportive environments for diverse talent.

 If you find this insight compelling and want to stay informed on the latest developments, sign up for the DPI research updates today!


Guest Post: Judgment Preservation Insurance and the Federal Circuit

Guest post by Jonathan Stroud and Sam Korte.  Mr. Stroud is the General Counsel of Unified Patents and Mr. Korte is Senior Principal Counsel – IP at Garmin.

An exotic insurance product has recently taken the litigation world by storm.  Judgment preservation insurance, or JPI, was neither offered nor widely discussed, at least publicly, as recently as five years ago.[1]  Now, it’s hard to avoid; a brief Internet search will turn up hundreds of hits and dozens of explainer articles by insurance brokers, law firms, and litigation funders extolling the benefits and pitching such policies to appellants. In IP lit, panels, presentations, and brand-new conferences, insurers and lawyers extol the virtues of these “bespoke” policies.  They now undergird some of the biggest eye-popping judgments on appeal to the Federal Circuit.

Briefly, JPI is a when a civil litigant (or funder) who has won a money judgment—let’s say, $100m—purchases an insurance policy guaranteeing some percentage of the judgment.[2]  In this example—taken from a pitch—a $12.5m policy premium might offer a guarantee of 80% recovery, or $80m, if the appeal results in a settlement, or if full recovery is otherwise stymied—remand, lack of collectability, or another adverse intervening event.  Here the plaintiff-appellant, while out the immediate $12.5m, now has a policy worth at least $80m, against which they can borrow or otherwise book the judgment at some predictable gain; perhaps to continue the appeal or offset recovery costs.  Sellers promote policies alongside litigation financing portfolios to de-risk and otherwise encourage litigation.  And litigation financiers are bundling these verdicts (with their other litigations) and selling shares in the result.  Thus, JPI provides them a floor for these bundled “securities” and allows them a way to assure gains.

Developer Appian secured a $2 billion judgment in a trade secret case, and publicly disclosed to the Wall Street Journal they insured it, including the terms. There, the $47.5m policy ($57.3m including fees) guaranteed 25% (at least $500m) of the judgment. A policy that large held by a publicly traded company whose total revenue in 2022 was, by comparison, $468 million, turned heads.  It has been explained as a smart (if expensive) way to hedge against the high risk of reversal of these supersized judgments.

The policies themselves, at the guaranteed rates currently offered, seem terribly risky. We have heard experienced insurers complain of competing brokers offering guarantees of 50%-80%, and in one case, 96%; clearly, actuarial tables don’t exist for judgment collection, but the reversal rate in appeals from the District Courts was 57% in 2022—and there can be remands and other appeals.

Now, to spread risk and reduce the harm when policies are called, insurance underwriters employ tranches and towers—multiple insurers—and will often sell off insurance liability. But the incentive to compete to sell policies and earn premiums is likely driving these guarantees higher than reasonable.  Given reversal and recovery rates, maybe a 25% policy is sensibly balanced in the patent context based on known reversal rates and settlements; case-specific issues, like preexisting judgments or bad facts, might push it higher.  But anything much higher than that seems, to most in the field, foolish.  Perhaps there’s a sales volume that justifies that risk, and many more policies than estimated are being written; or perhaps we are riding an insurance bubble in this niche market.  Either way, if JPI insurers write policies for Federal Circuit damages appeals at higher rates, plaintiff-appellants will take them—if offered at such eye-catching terms, they have rational attraction.

In-house counsel told us that within hours of receiving patent mega-judgments—which we arbitrarily peg as above $100m—multiple insurance brokers reached out, some directly by phone within hours, to discuss JPI policies.  We have been told by many that the $2.2 billion Intel v. VLSI judgment was insured, though for how much and by who hasn’t been publicly disclosed, as far as we know.

Federal Circuit district court reversal rates and recovery being what they are—as high as 43%, depending on the year—if insurers are willing to offer 80% (or more) at reasonable premiums, why wouldn’t most plaintiff-appellants take them?  Even cash-rich plaintiff-appellants could likely further monetize the guarantee.  Plaintiff-appellants could borrow against that policy, calm investors, or incentivize holding out through the length of an appeal, which currently average 418 days.[3]

But are JPIs good policies for the insurers?  The math suggests not, at least at these high rates of guarantee.  To be sure, insurers and underwriters are not generally reckless.  It’s likely at least some of the risks have been analyzed and justified or accounted for.  There are many ways insurers de-risk alternative insurance products—through “insurance towers,” by drafting agreements that give them some control over the appeal, or to include terms to continue incentives for the appealing party not to settle at a loss to the insurer.  One would imagine that insurers in some appeals can and might need to subrogate, stepping into the shoes of the appellant when necessary to defend their risk—or writing policies that set a settlement floor to collect.

Nonetheless, analysts, insurers, and reinsurers may not truly understand how volatile and persnickety patent appellate recovery can be—particularly given the trend of nuclear judgments being reversed on appeal.  Maybe they do; maybe they don’t care; maybe this is such a (relatively) small slice of the alternative insurance market, and it’s been analyzed and de-risked so well, that it won’t matter.  It is a brand-new “bespoke” insurance product with a brand-new market, no oversight, and is yet little understood.  While we’re not sure those broker incentives mentioned earlier don’t naturally tilt toward overselling of risky policies unlikely to pay off in the long run, we’re also not sure it matters, if the policies have been de-risked.  But they remain, on their face, incredibly risky.

And then there is the disclosure gap problem. Since the 1970s, all Federal litigants have been required to disclose insurance agreements under Federal Rule of Civil Procedure 26, for myriad compelling reasons explained in the comment to the rule.[4]  (One reason being that it is possible both sides are insured by the same or related insurers, and the parties might be unaware of the obvious conflict.)   No similar rule exists in the Federal Rules of Appellate Procedure—understandable given insurance purchased after judgment and targeting appeals—JPI—did not exist at the time.  There’s an argument that those policies must be disclosed on any remand, though docket searches suggest that’s not happening.

The disclosure gap affects other rules, too—for instance, FRAP and local Federal Circuit Rule 33 address the Federal Circuit’s Mediation Program (link).  While the Federal Circuit loosened its language earlier this year and no longer requires mandatory settlement discussions between the parties (link to this year’s amendments), JPI certainly changes, and in some cases may frustrate or eliminate entirely, the possibility of settlement, contrary to the intent of those rules. It may also change the real party in interest on appeal, if the insurance company holding the policy subrogates the claim or the policy is written such that they are the real appellant.  And it could introduce conflicts if related insurers are on both sides of a dispute.  At a minimum, FCR 33 should be amended to require disclosure of JPI and to include insurers in the mediation program.

Regardless of whether the Court and the Judicial Conference yet realize it, though, JPI is here in force, and is being offered widely, at terms both attractive and likely to alter settlement dynamics.  It is affecting appeals.  And while it seems likely that at least some of these policies are riding an insurance bubble and will pop, that moment has yet to come. Perhaps we are entering a phase where available insurance coverage is the rule, and not the exception.  It would be a shame if premature overselling of risky policies or settlement disputes led to a bubble popping and a painful contraction.

[1] See Aviva Will & David M. Perla, United States: Litigation Funding Comparative Guide, Burford Capital, March  23, 2023 (noting that “in recent years” the “legal finance market has witnessed “the growth of a new finance-adjacent product: litigation insurance policies on affirmative recoveries by companies and law firms.”);

[2] For a general explainer, see Certum Group, Judgment Preservation Insurance (video), available at (last accessed Nov. 14, 2023).

[3] Morrison Forrester offers a rather useful instant tool that can show you the current pendency rates for Federal Circuit appeals.  For patent cases originating from district court, it’s currently an average of 418 days from filing of the notice of appeal to decision.  See Statistics, Federal Circuitry, Morrison Forrester (interactive tableau tool), available at (accessed and tabulated Nov. 14, 2023).

[4] The comment to the 1970 FRCP amendment:

“Disclosure of insurance coverage will enable counsel for both sides to make the same realistic appraisal of the case, so that settlement and litigation strategy are based on knowledge and not speculation. It will conduce to settlement and avoid protracted litigation in some cases, though in others it may have an opposite effect. The amendment is limited to insurance coverage, which should be distinguished from any other facts concerning defendant’s financial status (1) because insurance is an asset created specifically to satisfy the claim; (2) because the insurance company ordinarily controls the litigation; (3) because information about coverage is available only from defendant or his insurer; and (4) because disclosure does not involve a significant invasion of privacy.

Disclosure is required when the insurer “may be liable” on part or all the judgment. Thus, an insurance company must disclose even when it contests liability under the policy, and such disclosure does not constitute a waiver of its claim. It is immaterial whether the liability is to satisfy the judgment directly or merely to indemnify or reimburse another after he pays the judgment.”


The Predictability of the Mayo/Alice Framework – A New Empirical Perspective

By Jason Rantanen and Nikola Datzov. Professor Datzov is an Assistant Professor  at the University of North Dakota School of Law.

The Mayo/Alice framework used to determine patent eligibility has been a lightning rod for criticism since the Supreme Court’s decisions a decade ago. Some have argued that the two-step framework is inconsistent with earlier patent eligibility precedent, while others have focused their objections on its purported negative effects on innovation. But arguably the most popular narrative is the asserted fatal flaw that the framework lacks administrability and cannot be applied predictably.

Too many critics to count—including academics, practitioners, legislators, and judges—have lambasted the patent eligibility framework as an unpredictable morass of confusion. Even some judges on the Federal Circuit have labeled the eligibility framework as an “incoherent doctrine”[1] that might tempt district courts into “an effective coin toss,”[2] while others have openly confessed that “the nation’s lone patent court … [is] at a loss as to how to uniformly apply § 101.”[3] The latest legislative attempt to reframe patent eligibility is similarly premised on “extensive confusion and lack of consistency [in applying the 101 exceptions] throughout the judicial branch of the Federal Government and Federal agencies.”[4] These concerns for unpredictability are undoubtedly echoed by countless practitioners who have been in the trenches of litigating this polarizing issue. Given the particular emphasis on bringing predictability to patent law in creating the Federal Circuit, these criticisms raise a grave concern regarding one of the most important areas in patent law.

Yet, empirical analysis suggests that those claims of unpredictability may stand on shaky grounds. In an attempt to better understand whether judges have been able to predictably apply the doctrine, we analyzed the Federal Circuit’s entire body of 368 cases on § 101 from 2012-2022 at a more granular level than any prior study. To evaluate the level of predictability within § 101 jurisprudence, we used a multi-dimensional approach that considered: (1) whether lower tribunals are reaching the legally correct outcome (i.e., reversal rates); (2) whether lower tribunals are correctly applying existing law in each case (i.e., error rates); and (3) whether appellate judges demonstrate disagreement in applying the law (i.e., dissent rates).

What we found shocked us. It turns out that patent eligible subject matter jurisprudence looks remarkably like other patent law issues at the Federal Circuit and lacks the kinds of empirical hallmarks that we would expect given the rhetoric for unpredictability. In fact, under one of the most well-established metrics for measuring the predictability in the law, § 101 proved to be more predictable than other areas of patent law over the past decade.

Importantly, our goal was not to examine or argue where the line should be drawn for determining what is eligible for a patent. Instead, we just sought to evaluate whether judges can tell where the line has been drawn by the Supreme Court in Mayo. In other words, whether the Mayo/Alice framework has proven workable and predictable through ten years of litigation. As to that question, our analysis suggests that the popular narrative that § 101 and the Mayo/Alice framework cannot be predictably applied, particularly by judges might be more of a misconception than an accurate narrative.

Below are some of our key findings regarding predictability from the research study.  If you’d like to jump ahead to the draft paper itself, here’s a link:

 A Historically High Affirmance Rate

Our examination of the Federal Circuit’s body of case law on § 101 revealed that from the Federal Circuit’s perspective, the district courts and the PTO are getting the right result nearly every time, boasting an overall 87.2% affirmance rate.

Graph of affirmance rates for Section 101

Figure 1

Figure 1 shows that the Federal Circuit believes district courts and the PTO are getting the right result in a very high percentage of cases. This is especially notable given that 98.2% of the district court decisions reviewed by the Federal Circuit arose in the context of a Rule 12 motion, summary judgment, or JMOL—procedural postures in which the standard of review on appeal owes no deference to the district court.

Thinking about these numbers in context, the high affirmance rate on patent eligibility is not only a far cry from the Federal Circuit’s one-time 50% affirmance rate on claim construction, it’s higher than the Federal Circuit’s track record on obviousness. In fact, this may be the highest affirmance rate of any significant patent law issue tracked over a significant period of time.

District Courts Very Rarely Err in Their Analysis

To take a deeper look, we also examined the Federal Circuit’s analysis when it did affirm to see whether maybe the lower tribunal got the right result but for the wrong reason.  Although an analysis of affirmance rates has been an established and important marker in measuring the predictability of the law, it provides a somewhat incomplete picture of judges’ ability to apply the law predictably because it focuses only on the outcomes and not the process of making the decision. It’s possible that a judge can err in the legal analysis (or incorrectly apply a legal standard) and still reach the correct overall result—in other words, get the right result for the wrong reasons. Thus, looking beyond mere outcomes to determine how often a judge applies the correct analysis is an important perspective in determining whether a law can be predictably applied.

We found that district court and PTAB judges not only rarely get the outcome wrong, they also make very few errors in applying the law. When district courts reached the right outcome (i.e., complete affirmance on § 101), the Federal Circuit noted a mistake in the district court’s § 101 analysis a mere 4.5% of the time—and 0% of the time for PTAB judges. There were a mere 7 errors in 153 affirming opinions (excluding Rule 36 affirmances). If looking only to precedential opinions (those written for the bar and interested persons other than the parties), there were 4 errors in 67 opinions, resulting in a comparable 6.0% error rate. Overall, taking into account reversals and vacated decisions, more than 80% of the time for the district court—and 95.5% of the time for the PTAB—the judge’s Mayo/Alice analysis was error free.

This type of granular examination of appellate outcomes has been largely absent from earlier empirical studies, so it’s difficult to put the § 101 error rate in historical context. Still, the low rate of errors in district court and PTO § 101 decisions appears to be remarkably low for an area of law identified to be in crises.  Indeed, it appears to be another strong indicator that district courts and the PTO understand how to apply the law, overall.

Federal Circuit Judges Rarely Disagree Regarding § 101 Outcomes

Athena Diagnostics v. Mayo, 927 F.3d 1333 (Fed. Cir. 2019) and American Axle v. Neapco, 966 F.3d 1347 (Fed. Cir. 2020) are § 101 decisions frequently cited as exemplars of what some—including several judges on the Federal Circuit—have argued to be a complete breakdown among the Federal Circuit on how to apply § 101 law. Surprisingly, despite the attention § 101 has received, there have been almost no empirical studies to examine this question on a deeper level.

Yet, in what may be the most surprising finding from our study, in all but a few cases, Federal Circuit judges have shown remarkable agreement (93.5%) in deciding § 101 issues over the past decade. In fact, under this measure of predictability, § 101 proved to be more predictable than the other areas of patent law.  In the 368 § 101 cases decided by the Federal Circuit from 2012 to 2022, there were just 24 dissenting opinions relating to § 101. As shown below, the number of cases in which there was a dissenting opinion on § 101 has remained consistently low and peaked in 2019-2020:

Graph of dissents in Sectino 101 decisions

Figure 2

Putting the § 101 dissent rates over the past decade in historical and subject matter context further indicates that § 101 law has not been the subject of more disagreement than other areas of patent law.

Table of dissent rates at the Federal Circuit

Figure 3

The summary tables above show that the dissent rate in Federal Circuit decisions involving § 101 over the period 2012-2022 is identical to the rate among all other Federal Circuit decisions, and was lower than in non-101 patent decisions. And while the rate of dissents in § 101 opinions is somewhat higher than in all other opinions that don’t involve § 101, it’s still lower than the dissent rate in non-101 patent opinions generally and nearly identical for patent opinions arising from the district courts—likely because a substantial number of § 101 appeals are summarily affirmed. With that in mind, it’s remarkable that the dissent rate for § 101 decisions (including Rule 36 affirmances) arising from the district courts is actually lower than the court’s dissent rate in appeals from the district courts that don’t involve § 101.


More details on the methodology and analysis—as well as additional findings on the types of appeals, procedural posture of decisions, breakdowns by exception type, and invalidity outcomes—can be found in the working draft paper on SSRN: In addition to our core findings on predictability, we also provide updated data on § 101 issues studied by previous scholars. Comments are welcome, and can be communicated by email to Jason Rantanen.

[1] Interval Licensing LLC v. AOL, Inc., 896 F.3d 1335, 1348 (Fed. Cir. 2018) (Plager, J., concurring-in-part and dissenting-in-part).

[2] Realtime Data LLC v. Reduxio Sys., Inc., 831 F. App’x 492, 493 (Fed. Cir. 2020) (emphasis added).

[3] Am. Axle & Mfg., Inc. v. Neapco Holdings LLC, 977 F.3d 1379, 1382 (Fed. Cir. 2020) (Moore, J., concurring).

[4] Patent Eligibility Restoration Act of 2023, S. 2140, 118th Cong. § 2(3) (2023)

Guest post by Hampole, Truffa & Wong: Breaking the Glass Ceiling: The Power of Female Peer Networks

Guest post by Menaka Hampole, Assistant Professor of Finance, Yale School of Management, Francesca Truffa, Postdoctoral Scholar, Stanford Graduate School of Business, Ashley Wong, Assistant Professor of Economics, Tilburg University. This post is part of a series by the Diversity Pilots Initiative, which advances inclusive innovation through rigorous research. The first blog in the series is here and resources from the first conference of the initiative are available here.

The glass ceiling — the barrier obstructing females and minorities from obtaining upper-level positions— persists. Even with decades of advancements in labor force participation and university enrollment, companies still underrepresent women in top corporate leadership roles. For instance, women constitute 40% of the workforce in the S&P 1500 companies, yet they only occupy 6% of CEO positions. The gender gap expands at every level of the corporate hierarchy.

In our recent study, we look at MBA graduates from a top U.S. business school in the last two decades, and we find a big gender gap in management roles. While almost all male and female grads step into management roles within 15 years of graduation, women have a 24% lower chance of reaching senior positions. This difference appears within a year of getting their MBA and lasts for at least 15 years, and this gap exists even when you consider factors like experience or the type of company they work for.

Figure 1. Representation in the Corporate Pipeline Among MBA Graduates in the First 15 Years Post-Graduation by Gender

Grap of probability of holding manage position by genderNotes: We plot the percentage of male and female graduates who ever held any managerial positions, a VP or Director position, SVP positions, and C-level Executive position within fifteen years since graduation. We display the 95% confidence intervals from the t-test of gender equality. Sample includes students of the graduating classes 2000-2018, excluding 2009.

If managerial talent exists equally across genders, the scarcity of women in executive roles suggests current leaders are misallocating talent.  Executives significantly shape performance and innovation outcomes within their firms, so when firms lose female talent moving up the corporate ladder, they are likely reducing employee productivity, inventive capacity, and firm value.  Furthermore, female managers can serve as role models and enact policies that lower obstacles for other women. Consequently, female leaders can foster a more gender-diverse and inclusive corporate environment. Given the potential widespread impacts of having too few women in executive roles, it’s crucial to understand what policies can help reduce the leadership gap.

Can access to a larger network of female peers in business school help women reach leadership positions?

Women can gain insights from other women on companies that support their career growth and how to make the most of benefits like maternity leave. However, connecting with men, who often have wider networks and hold powerful positions, might offer more advantages. So, it’s a real question whether female peers truly help close the management gender gap.

Our study documents that having a higher share of female peers in school has a positive impact on women’s advancement into senior leadership positions.  We find that adding 5 more women to a section of 60 students would increase women’s likelihood of achieving senior managerial positions from 39% to 45%. In contrast, there is no effect on male students. This overall effect translates into a 26% reduction in the management gender gap.

This effect is largest in male-dominated industries like tech and manufacturing, where women are underrepresented the most, suggesting that female peer networks are most important in industries where women are more likely to face barriers in accessing informal networks in the workplace.

When we looked into company features, we found that women with strong networks of female peers often get promoted to top roles in companies that are supportive of women. What’s interesting is that women tend to join these companies six to ten years after getting their MBA, around the time they might have young kids. This hints that having support from other women might be most helpful when challenges in their careers are growing.

In our interviews with female MBA graduates, many shared that their female friends offered emotional support, pointed them to job openings, gave tips about work opportunities, and advised on balancing work with family life. This feedback shows how crucial female friendships are for women’s career success. By adding more women to MBA programs and encouraging them to network together, we might finally shatter that stubborn glass ceiling.

To all the innovators and patent pioneers out there, please take note. The insights we’ve gathered from MBAs are incredibly relevant, especially in the competitive, male-dominated world of innovation. Think about it – by actively nurturing female peer networks right from the get-go with young recruits, you could help to ignite real change.  Let’s champion this approach and bring a fresh wave of diversity and creativity to the forefront of innovation.

Three main takeaways:

  1. Persistent Gender Gap in Leadership: Even with advancements in education and labor force participation, a significant gender gap persists in top corporate roles. Women make up 40% of the workforce in major companies but only hold 6% of CEO positions. This disparity is evident even among MBA graduates from top U.S. institutions, where women face a 24% lower likelihood of reaching senior positions within 15 years of graduation.
  2. Importance of Female Peer Networks: Female MBA graduates benefit significantly from having strong female peer networks during their studies. Such networks can increase a woman’s chances of attaining senior management roles, especially in male-dominated sectors like tech and manufacturing.
  3. Implications for Innovation & Patenting: The underrepresentation of women in leadership roles can reduce a company’s productivity and inventive potential. By actively promoting and valuing female peer networks from early career stages, innovators and patent professionals can drive greater diversity in leadership and subsequently benefit from broader perspectives and increased innovation.

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Guest Post by Alice Li: Tips for Strengthening Innovation Ecosystems and Technology Transfer

Guest post by Alice Li, Cornell University, Executive Director of the Center for Technology Licensing, AUTM Board Member. This post is part of a series by the Diversity Pilots Initiative, which advances inclusive innovation through rigorous research. The first blog in the series is here and resources from the first conference of the initiative are available here.

Myriad inventions in history have been created based on the foundational research done by universities and academic institutions worldwide. Consider the following examples: Google, the search engine we use every day; COVID vaccines, which saved hundreds of thousands of people amidst the pandemic; and even Honeycrisp Apples, which many enjoy daily, are all widely used inventions with direct links to academic studies. In fact, from 1996 to 2020, nearly 500,000 inventions were created by academic institutions, and more than 17,000 startups were formed based on such inventions.

Given that technology transfer is a bedrock of the innovation ecosystem, it must be an inclusive step that helps ensure equality in the innovation and commercialization process.  For this reason, the Association of University Technology Managers (“AUTM”) has developed an equity, diversity, and inclusion (“EDI”) strategy to encourage the active participation of all demographic groups in technology transfer.  As the leading association of technology transfer professionals, with more than 3,000 members and 800 institutions globally, including universities, research centers, hospitals, businesses, and governmental organizations, AUTM has a crucial role to play in ensuring that the knowledge created by academic institutions is disseminated to a broader audience at many different organizations, improving the world and drives innovation forward.

But EDI should not be considered a separate pillar or task.  Instead, for best results, EDI should be integrated into everything technology transfer managers: educate, promote, and create professional networks and connections.  To achieve these strategic goals, AUTM established an EDI Committee that reports directly to the AUTM Office of the Chair.

The EDI Committee has two prongs to its strategy: first, to promote diversity in AUTM, the network of technology transfer professionals, and second, to promote diversity in the innovation ecosystem itself, which includes all inventors, entrepreneurs, and industry partners in the community. To pursue these goals, the EDI Committee has done Member Surveys to establish EDI objectives, developed Baseline Metrics for EDI in AUTM, and provided toolkits for EDI to technology transfer offices in more than 800 institutions. A few years ago, for instance, the AUTM EDI Committee officially released the Woman Inventor’s Toolkit, followed by the EDI Toolkit released last October. AUTM’s efforts to promote EDI in the profession continue.

Thus, today, I urge all the universities, institutions, technology transfer professionals, and diverse innovators to consider, once again, AUTM’s goals to promote EDI in the innovation ecosystem. First, I ask universities, agencies, and related institutions to incorporate the Innovator EDI Data into their metrics for innovation. AUTM has collected metrics data for the past thirty years. AUTM’s comprehensive dataset will provide organizations with a strategic and holistic guide to promote diversity in their research and operations.

Second, I ask technology transfer professionals to participate in the AUTM Biannual Demographic Survey. Your participation will allow a better understanding of the demographic makeup of the technology transfer and knowledge exchange in the innovation ecosystem. Such understanding will lead to more opportunities, improvements, and advancements in our community.

Third, I ask women and diverse innovators to join mentoring programs as mentors and supporters.  Last year, the AUTM EDI Committee developed a pilot program to support the growth and careers of university professionals who are at Minority Serving Institutions (MSI) and interested in the commercialization of academic research and technology transfer. AUTM provides participants access to the AUTM community, mentorship, and Association benefits through this program. AUTM has approached more than 30 universities since the program’s initiation, and currently, twelve are actively participating in it. Also, AUTM provided up to five individuals with complimentary memberships in each TTO, an eGroup that the EDI committee members facilitate for information sharing and mentoring. Furthermore, AUTM is actively supporting other programs in the community, such as Equalize, the National Pitch Competition, and Mentor Program to empower academic women entrepreneurs. Your participation in such programs as a mentor or a supporter can provide new women and diverse innovators in the field with ample resources and practical guidance.

Fourth, I ask institutions and organizations to assist with reaching out to diverse candidates.  For instance, Cornell has started the Ignite gap funding series. The gap funding program is designed to help entrepreneur scientists and engineers start new companies. In an academic research environment, gap funding provides critical support to promising technologies and innovations with significant commercial potential, but which are still “too early” for licensing or external investment. Applications for gap funding and other programs to accelerate innovation are due in the fall.  At Cornell’s Center for Technology Licensing, we look forward to supporting future successful diverse entrepreneurs in their journey in innovation.

Collective action and joint efforts involving all stakeholders are vital to building a robust system for technology transfer and creating a diverse innovation ecosystem. Please join us in our efforts to stimulate technology transfer and promote diversity in invention.

For more information, please feel free to contact us.

  1. To incorporate Innovator EDI Data into metrics for innovation: Lisa Mueller:
  2. To get information of the AUTM Demographic Survey: Colleen Loeffler
  3. To join the Equalize Competition and Mentor Program: Kristen Leute; Nichole Mercier
  4. To assist with reaching out to diverse candidates to apply for the Ignite Gap Funding Fellow Positions: Alice Li

Main takeaways:

  1. Partner with AUTM for Tech Transfer: Many inventions and technologies came from initial studies done by universities and research institutions worldwide. Therefore, technology transfer is vital in the field of innovation. AUTM is a leading association of technology transfer professionals.
  2. Incorporate Innovator Data: To promote diversity in technology transfer, AUTM encourages you to incorporate the Innovator EDI Data into your metrics for innovation, participate in the AUTM Demographic Survey, join mentoring programs as mentors or supporters, and reach out to and educate diverse candidates for gap funding programs for entrepreneur scientists and engineers.

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Guest post by Dr. Dimeglio – An Invitation to Inclusive Innovation

Guest post by: Dr. Paola Cecchi Dimeglio, Chair of the Executive Leadership Research Initiative for Women and Minorities Attorneys at Harvard Law School and Harvard Kennedy School

(This post is part of a series by the Diversity Pilots Initiative, which advances inclusive innovation through rigorous research. The first blog in the series is here and resources from the first conference of the initiative are available here. – Jason)

Virtual reality, AI chatbots, and other emerging technologies are fueling a drive to innovate, improve, and patent new products and services that are inclusive from the beginning. This goal is not only morally right but also economically essential; inclusive innovation has become a multibillion-dollar necessity. However, engaging diverse inventors at large technology companies still presents layers of challenges.

Picture of Dr. Dimeglio

In 2022, the USPTO reported a 32% growth in the number of U.S. counties where women patented over the 30-year span from 1990 to 2019; in 2019, over 20% of patents issued included at least one woman inventor; similar data is not available for minority inventors.

Perhaps more than at any time in their history, technology companies are under pressure to achieve patentable breakthroughs. One factor driving the urgency of innovation is the need to create and commercialize products and services that meet the promises of emerging technologies. Once the stuff of sci-fi and fantasy, the Metaverse and humanlike generative AI have taken substantial steps out of movies and literature. Virtual and augmented reality has gone mainstream, and the premier generative AI chatbot, ChatGPT, set user records shortly after it was released late in 2022. Having sampled the Metaverse and prompted chatbots to pour out pages, the public wants more, and they want it now.

Technology giants often partner with smaller, specialized businesses for the purpose of achieving technological breakthroughs. These collaborative ventures may produce new platforms, result in extensive IP development, and spawn multiple families of products. Most often, they fail.

In the current race to innovate, businesses are looking within their ranks for beneficial patentable ideas. It makes sense, as employees at all levels of a company have a close relationship with that organization’s products, patents, and aspirations. Leaders realize that the next big invention can emerge from unexpected quarters at their businesses, and many have begun casting the net as wide as possible.

This time around is different. Innovation has to be highly inclusive at the outset. The environments, cultures, policies, and dynamics of virtual worlds have to operate without traditional biases. And AI has to think and decide without the incidents of discrimination that are dragging many businesses into court. It’s about the bottom line. A Metaverse that is not tuned to highly diverse users cannot achieve its full value potential, estimated at $936.6 billion by 2030. To realize these earnings, inclusion has to be a real part of the innovation process.

Achieving this end at a company means having all perspectives involved in the inventing and patenting processes. Businesses’ all-hands invitations to inclusive innovation have come up against the history of who is more likely to file patents and who is not. Some organizations realize that their own culture has long perpetuated the stereotypes of who is an inventor. Most businesses are running up against the default assumptions that they have cultivated for decades. Some have invested significantly in changing the status quo. Many businesses, including prominent technology companies, have signed a Diversity Pledge and have committed to sharing many of their outcomes.

Other businesses and one significant technology company, in particular, have taken a more scientific approach to increasing the number of underrepresented inventors in their innovation pipeline.

The goal of eliciting innovation from all groups and quarters of the company, truly inclusive innovation, meant getting people from underrepresented groups to see themselves as people who file patents. The process commenced with a baseline assessment of the experiences that employees had with the company’s patent process and related staff. As a result of data analytics and employee interviews, the company reshaped how inventors interact with patent staff and resources. It also launched an internal campaign aimed at redefining who is an inventor.

On a specific level, interviews with minority employees, including those who had filed at least one patent, revealed an unexpected barrier. Part of the language of the invitation to share ideas so that they could be assessed for patentability was offending underrepresented innovators. This language was modified after the initial interviews.

In this case, the use of the term “harvesting” in reference to gathering ideas was being applied to brainstorming sessions. Many individuals across multiple racial, gender, and ethnic identities were offended by the choice of words and the suggested lack of sensitivity. The true number of inventors who hesitated due to past terminology will remain unknown. However, the shift toward inclusive and belonging language is now captivating and involving everyone.

Businesses that are innovating to find and patent the next big thing can examine their own systems of gathering ideas from their people. After hearing from their innovators, they will likely make changes to the systems and staff that help their employees file and prosecute patents on behalf of the organization. Internal education processes and peer-to-peer information sharing bolster engagement.  But even with everything in place and everyone invited to share their ideas, the language of the invitation can create a barrier.

Historically, only certain employees have been invited into the mystery of patenting. The broadly accepted idea has been that patenting is for a limited segment of employees. Now, companies are tasked with dismantling the exclusion and elitism they built. This time, their earnings depend on it.

Three takeaways:

  1. There is a need for inclusive innovation in emerging technologies both ethically and economically. However, involving diverse inventors in large tech companies presents challenges.
  2. Innovation must be highly inclusive at the outset. To do so, tech companies should have all perspectives involved in the inventing and patenting processes.
  3. The language of the invitation matters. Historically, only certain employees have been invited to become involved in patenting. The language should not only be inclusive and welcoming in itself but should also be directed towards all potential employees. To do so, companies should dismantle the exclusion and elitism they had built.

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Guest Post by Prof. Goodman – Unseen Contributors: Rethinking Attribution in Legal Practices for Equity and Inclusion

By: Jordana R. Goodman Assistant Professor at Chico-Kent College of Law

(This post is part of a series by the Diversity Pilots Initiative, which advances inclusive innovation through rigorous research. The first blog in the series is here and resources from the first conference of the initiative are available here. – Jason)

According to the National Association for Law Placement, female equity partners in law firms comprised about 23% of the total equity partner population in the United States in 2022.  Women made up more than half of all summer associates and have done so since 2018.  Representation among intellectual property lawyers parallels this trend, with women representing about 22% of all equity partners and over 50% of all summer associates in 2019. Although there has been steady progress in hiring women attorneys at junior levels, there have not been similar increases in partner retention in the past thirty years.  NALP called the partner level increases “abysmal progress,” and suggested that one reason for this failure is that “little work has been done to examine and change the exclusionary practices that create inequalities.”

If presence was the only obstacle to creating a more diverse, equitable, and inclusive legal environment, the pipeline of diverse junior associates would have begun to significantly shift the partner demographics at law firms across the country.  However, because the environment within a law firm can be unfriendly to non-Caucasian, non-cisgender male, non-heterosexual lawyers, people who identify as such tend to leave legal practice at higher rates. More must be done to remedy inequities within the day-to-day practices to create an equitable legal environment.

As detailed in my study, Ms. Attribution: How Authorship Credit Contributes to the Gender Gap, allocation of credit on public-facing legal documents is not equitable. When the senior-most legal team member signs documents on behalf of their legal team, they are erasing the names of associates from the record.  This widespread practice, combined with the constant perceived differences in status between male and female colleagues as well as biases related to accents, can lead to negative consequences and unequal attribution for women, people of color, and LGBTQ+ individuals. “Under-attribution of female practitioners falsely implies that women do less work, are more junior, and do not deserve as much credit as their male colleagues” and such practices must change.

Not every attribution decision is a social decision, where a partner has a complete choice to allocate credit to associates within a firm.  Government forms and procedures can prevent equitable attribution of all practitioners.  For example, the United States Patent and Trademark Office (USPTO) requires applicants to submit paperwork accompanying a patent application, but this paperwork does not allow for equitable attribution of everyone who wrote the patent application.

Specifically, the cover sheet of a provisional patent application prominently features five distinct lines dedicated to naming inventors, with an additional prompt allowing for the inclusion of more inventors on a separate sheet if needed. However, there is a stark contrast when it comes to attributing practitioners; there’s merely one designated line for practitioner correspondence and notably, no space provided to credit practitioners responsible for composing the application.  Similarly, the Application Data Sheet (ADS)—a form that accompanies a non-provisional application—initially provides only one line to list a corresponding practitioner. Any additional lines for other practitioners necessitate manual addition, highlighting a consistent limitation in acknowledging multiple contributors in the practitioner field.

With the exception of solo practitioner-composed applications, most patent applications are written as a collaboration, with both junior and senior practitioners participating in the written exercise.  However, due to prevailing norms within law firms, where gender representation disparities are especially pronounced at senior partnership levels, and the social dynamics between junior and senior practitioners, paperwork is more frequently signed by male practitioners than their female counterparts.  Not only are women’s names disproportionately concealed from the public record, but also the credit gap increases as attorneys continue to practice.  As Figure 1 below shows, of the highly-credited patent practitioners identified from 2016-2020, over 90% were male.The importance of this credit – signatures at the bottom of paperwork accompanying patent applications – should not be underestimated.  Credit serves as a reward and incentive for future work, as well as a humanizing function – linking work product “to the reality of human endeavor.”  Credit in this context can influence client acquisition, a sense of belonging in the firm, career advancement, and achieving notoriety. Therefore, the USPTO should consider amending their paperwork to ensure teams of practitioners can all receive credit for their contributions to the patent application.

First, the USPTO could add more signature lines on all patent application paperwork.  In addition to corresponding practitioners, practitioners who composed a substantial amount of the patent application could also receive public attribution. The USPTO could expand the forms, such that associates who have not passed the patent bar could still receive credit for their work.  Furthermore, the USPTO could compose a bulletin for firms, explaining the importance of credit for associates and showing ways that multiple practitioners could receive credit on office action responses, issue fee sheets, and other documentation.  Finally, the USPTO could track attribution to determine if teams are taking advantage of the increased attribution opportunities and if the opportunities increase female attribution and retention.

Three main takeaways:

  1. Persistent Gender Disparities: Despite steady progress in hiring women attorneys at junior levels and women constituting over 50% of summer associates since 2018, there have not been similar increases in partner retention in the past thirty years. Women only hold around 23% of equity partner positions in U.S. law firms, highlighting unaddressed, systemic inequalities and exclusionary practices.
  2. Inequitable Attribution in Legal Documents: The current practice of senior-most legal team members signing documents conceals the contributions of associates, leading to unequal attribution. This under-attribution particularly affects female practitioners, people of color, and LGBTQ+ individuals, implying they do less work and do not deserve as much credit as their male counterparts. This iniquity in credit allocation on public-facing legal documents serves to reinforce gender gaps and hinders career advancement, client acquisition, and a sense of belonging within the firm.
  3. Proposed Amendments to USPTO Procedures: To address inequity, USPTO should revise procedures and forms to facilitate equitable attribution for all patent application contributors and to stress the importance of credit, assessing the impact on attribution and retention dynamics, especially for women.

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Guest Post: Diversity Pledge: Boosting Innovation and Competitiveness

By: Suzanne Harrison, Chair of the Patent Public Advisory Committee (PPAC) at the USPTO.  This post is part of a series by the Diversity Pilots Initiative, which advances inclusive innovation through rigorous research. The first blog in the series is here and resources from the first conference of the initiative are available here.

In July 2021, the USIPA hosted a DEI in innovation conference and launched The Diversity Pledge, alongside 30 founding Pledgee companies who agreed to increase the participation of under-represented inventors (URIs) in their own firms.  Currently, over 50 technology companies have committed to the Diversity Pledge from both the US and Europe across a variety of different industries as well as over 25 law firms and consulting firms as pledge supporters. On August 1st, we held the second conference on Increasing Diversity in the Innovation Ecosystem with the USPTO and showcased what companies, law firms, universities and the USPTO are doing in their respective organizations to increase DEI within inventorship, innovation and the IP profession.

When we created the Diversity Pledge, our hope was to create more transparency in innovation and inventorship inclusivity, by creating a standard metric for companies to report on their DEI reports.  What we have come to realize however, is that increasing diversity and inclusivity in innovation is not only an equal-opportunity social imperative, it is a common sense means to improve R&D efficiency, corporate ROI and it is also a necessity for maintaining and increasing national competitiveness. Because we can’t afford to leave our most talented people on the sidelines, the goal must be actionable, not performative.

So, two years into this movement, what have we learned?  Creating a metric and asking companies to focus on improving it has led them to implement best practices, try out a variety pf process improvements which have led to substantive changes.  Of the 50 Pledgee companies, 30 of them participated in our first round of reporting, as not all of them had been Pledgees long enough to have a full year of data to report.  Of the 30 reporting, 17 provided women inventor rates (WIR) for year 1 and 6 provided the WIR rate for year 2. You can see the results in Figure 1 below:

Figure 1

For clarity, Pledgees were not required to report their WIR numbers, but chose to do so.  So, for the 6 Pledgees that reported two years of data, we can see that focusing on increasing inclusivity in inventorship for women, led to an average increase of women on patent applications of 23%.  For comparison, the US national WIR as determined by the USPTO is 13% so our Pledgees mean WIR in both year 1 and 2 are above the national average.  How are companies achieving these results?  At the conference we heard about a number of different things companies are doing.  First, mentoring women on the inventorship process and how they can improve their invention disclosure and patent application success rates.  Companies are also looking at how to better integrate underrepresented inventors into the innovation process and how to ensure both their voices and ideas are heard and incorporated.  Many of these efforts are being piloted by companies, and groups such as the Diversity Pilots Initiative (DPI) are crucial to helping us determine what actually works versus “seems” to work.   Many Pledgees have worked with DPI and have determined what interventions are successful and have allowed us to genericize those efforts and promulgate within Pledgees for continued success.

Two years ago, companies were focused on having us explain the value they would receive by focusing on inclusivity in inventorship or DEI in general.  While we still get occasional questions about this, recent data from both Gartner and World Economic Forum show that diverse teams within corporations, will exceed their financial targets, and drive a higher average revenue from innovation.  For companies this often translates to higher revenue and/or profit, increased employee retention, and lower hiring costs (as potential employees are interested in working for companies that appear more inclusive). But the real value for the nation, comes from increased employment and higher state and national gross domestic product (GDP).  This focus on jobs and GDP has caught the attention of both the Department of Commerce (DoC) and the USPTO.  Between the DoC and the National Science Foundation (NSF), these two agencies are investing over $1.3 billion in revitalizing America’s innovation ecosystem.  Finding out that one can use patent data to help visualize who is and is not participating in our innovation ecosystems, helps us figure out who to include in this process.

Additionally, the work Diversity Pledgees are doing is laying the groundwork for how companies, universities and law firms can make meaningful contribution to not only their own profitability, but also to our national economic and technological success. This point was made crystal clear in the fireside chat with Director Kathi Vidal and Deputy Secretary of Commerce Don Graves at the conference.  In my 30 years as an IP practitioner, I cannot recall ever hearing anyone from the DoC talk about the importance of IP and innovation to the economy.  While we all intuitively believe that focusing on DEI is the right thing to do, finding out that it can truly help the nation is invaluable.  So, if you haven’t started on your DEI journey yet, what are you waiting for?  Knowing you can make an impact for both your company and country seems like a no brainer.

Three Key Take-Aways

  • Immediate Innovation Impact: Pledgee companies focusing on DEI report an average 23% increase in women on patent applications, surpassing the US national WIR.
  • National Competitiveness Boost: DEI initiatives, supported by the DoC and USPTO, are highlighted as essential for improving national employment rates and GDP.
  • Blueprint for Profitable Inclusion: The Diversity Pledge and collaborations like DPI are helping organizations elevate DEI, enhancing both their profitability and national economic success.

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Guest Post: Why Do Women Face Challenges in the Patent Process?

By: Abhay Aneja, Assistant Professor of Law, University of California, Berkeley, Diversity Pilots Initiative Researcher, Gauri Subramani, Assistant Professor in the Department of Management, College of Business, Lehigh University and Diversity Pilots Initiative Researcher, and Oren Reshef, Assistant Professor of Strategy, Washington University in St. Louis.  This post is part of a series by the Diversity Pilots Initiative, which advances inclusive innovation through rigorous research. The first blog in the series is here, and resources from the first conference of the initiative are available here.

About 86% of all patent applications are submitted by men or all-male teams. This underrepresentation of women gets worse as the patent approval process runs its course. In other words, patent applications from women and teams with higher female representation are less likely to convert into granted patents. Why is this happening?

An essential feature of the patent process is that it is highly iterative, so rejection occurs often, as the figure below of the evaluative trajectory of patent applications shows.  While over 80% of applications face rejection, it is crucial to note that rejection does not necessarily indicate the impossibility of moving forward with that invention. Applicants can respond to rejections and continue in the patent process. However, research indicates that female patent applicants are less likely to follow up after rejection, contributing significantly to the lower conversion rate of applications to granted patents.

A potential approach for overcoming female tendencies not to push forward or fight in response to rejection relates to whether the patent applications are affiliated with attorneys or firms. When applications are affiliated with firms, the process is typically managed by patent committees comprised of specialized experts, such as patent attorneys, who have lots of experience determining whether proposed ideas can be patented. Not only can these experts craft applications strategically, but they can also manage communications with patent examiners. For instance, they may help with responding to a rejection.

Although it is no surprise that both men and women benefit from the support of patent professionals, interestingly, female applicants derive much more significant gains than men from firm and attorney affiliations. This suggests that access to information and financial resources provided by firms and attorneys is particularly valuable for female patent applicants, potentially compensating for lower response rates to rejection and the other barriers women commonly face before applying for a patent (e.g., limited professional networks). However, the proportion of male inventors affiliated with firms or attorneys is higher than that of female inventors.

The underrepresentation of women in the field of innovation has far-reaching implications for our society. We are losing the opportunity to benefit from valuable contributions and perspectives just as much as the underrepresented population in innovative activities. From a macroeconomic perspective, this is a significant loss of potential economic growth. However, while the underrepresentation of women hurts society overall, it hurts women the most.

Research demonstrates that women are more likely to develop innovations that serve the needs of other women. For instance, the first disposable diaper was created by a mother, who herself was exposed to the issue many other women also face. Therefore, if female inventors are underrepresented, women more broadly are underserved because the innovations that may serve women’s specific needs are less likely to exist. Also, participation in innovation leads to individual-level benefits. Patents enable inventors to commercialize their inventions, benefit from increased wages, and enhance their employability. Women are obstructed from the opportunity to have access to these tangible pecuniary benefits.

The underrepresentation of women in the patent process is a critical issue that needs our attention. It is easy to think that women who apply for patents are probably more resistant to negative feedback because they’re already a highly self-selected group who have persisted in their endeavors against many obstacles. However, this is not necessarily true. A robust body of research illustrates that demographics are important in career choices and trajectories. Children born into the wealthiest 1% of society are ten times more likely to be inventors than those born into the bottom 50%. Female college graduates are much less likely to transition to STEM jobs. Even if female students eventually enter those fields, female academics and scientists are less likely to patent than male academics and scientists, partially due to their limited professional networks.

Also, the small proportion of women who do end up participating in innovation are often disadvantaged by biased evaluations of their accomplishments and capabilities as compared to similarly qualified men. These hurdles throughout the process inhibit women from becoming scientists or participating in innovation. It is crucial to address these challenges at each stage of the pipeline with interventions such as providing better access to information and free legal representation. By recognizing and tackling these obstacles, we can foster a more inclusive and supportive environment for women in innovation.

Measures such as improving access to information, providing free legal representation, and dismantling gender biases in evaluations can advance diversity in innovation. More representation of women in the field will not only foster economic growth but also lead to innovations that cater to the diverse needs of our world. I urge you to join our efforts to support women and bridge the gender gap in innovation.

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Utility Patents Granted per Calendar Year, 1840-2022

By Jason Rantanen

I’m getting ready to teach my Fall 2023 Patent Law class, and that means updating the granted utility patents graph that I do every few years.  This year’s version shows U.S. utility patents granted per year from 1840-2022:

Graph of utility patent grants 1840-2022

Data for 2023 isn’t included in the table, but as of July 25, 2023, the authority file contains just 171,556 patents.  If the pace remains the same, that would work out to about 294,000 patents granted this calendar year–around 10% fewer than 2022 (327,482 granted patents) and around 18% lower than 2020 (356,640 granted patents). (In contrast, at the end of July 2022 there were 186,500 patents listed on the Authority file.) But my sense is that the drop from 2022 may be due to a delay in actually publishing the granted patents rather than reflecting a decline.

In fact, looking at the USPTO’s reported statistics, I’d actually expect more issued patents in 2023 than in 2022.  Filings are continuing to trend slightly upwards (there were 457k non-RCE UPR filings in FY 2022, as compared with 450k in FY 2020 and 427k in FY 2018). Allowances are up slightly as well: 253k allowances so far in 2023, as compared with 247k at the same point in 2022. So the decrease in granted patents relative to last year may be the result of a delay between allowance and publication. If you have any insights into this, I’d love to hear them.

One thing that does appear to be real is a drop in allowances relative to 202o, which had 278k allowances by the end of June. This doesn’t appear to be the result of fewer applications or a lower allowance rate–instead, there’s been a large growth in the unexamined application inventory from 570k (June 2020) to 735k (June 2023).


I imported the 2023-07-25 Patent Grant Authority file into STATA and tabulated the number of A1, B1 and B2 kind code records by year.  (For those who might be confused by the use of A1, the authority file uses A1 to indicate pre-2001 utility patent grants).  I included patents that are marked as Withdrawn.  The above graph uses calendar years (Jan. 1 – Dec. 31) instead of FY (fiscal years: Oct 1 to Sept. 30).  To predict 2023, I divided the grants as of the 7/25 by 7, then multiplied by 12; the number is similar if weeks are used. Data on filings and allowances comes from the detailed spreadsheet at the bottom of

Guest Post by Prof. Koffi: A Gender Gap in Commercializing Scientific Discoveries

Guest post by Marlene Koffi, Assistant Professor of Economics, University of Toronto and NBER Faculty Research Fellow. This post is part of a series by the Diversity Pilots Initiative, which advances inclusive innovation through rigorous research. The first blog in the series is here and resources from the first conference of the initiative are available here.

Diversity and inclusion in science and commercialization are integral to innovation, societal and economic growth. While progress has been made in increasing representation and inclusivity in STEM, there are complex factors at play that hinder a comprehensive understanding of the barriers faced by underrepresented groups in these fields. Today, I will focus on a challenging point later in the invention process: commercializing a scientific discovery. In a research study with Matt Marx, we characterize the gender dynamics of scientific commercialization in the full canon of scientific inquiry.

One of the highlights of our study is to show that, as a society, we have made lots of progress regarding gender balance in the early steps of the scientific production process. Analyzing 70 million scientific articles, we observe meaningful growth in female participation in scientific production. In 1980, barely one in five published papers included a female author. By 2020, that figure exceeded 50%. This increase represents a significant cultural shift in the scientific community. Diversity in science has been shown to stimulate innovation and promote higher recognition within the academic community. This is a win not just for the women involved but for the whole of society.

However, these gains for women early in scientific production hide potential pitfalls later. Namely, the key takeaway of our study is that a significant gender gap remains for commercializing scientific discoveries. Given that we find the gender gap in commercialization is the largest among discoveries that are more highly cited and with higher commercial potential, we title our study and refer to these uncommercialized discoveries as “Cassatts in the Attic” after the renowned female painter and printmaker Mary Cassatt.

What are the underlying reasons behind this gap? For instance, it could be that the investors financing early commercialization efforts are biased against women or that women have limited social networks to help move their scientific discovery to the next stage. While we explored several potential explanations, we found limited evidence that these supply-side factors alone could explain the gap. Instead, our findings indicate that the gender gap predominantly emerges in commercialization efforts conducted in collaboration with existing firms, pointing towards a potential bias from the firm side.

Now, let us consider the relevance of these findings to society.

At its core, the underrepresentation of women in the commercialization of scientific discoveries represents an enormous loss of potential. Women are leading innovative research projects, producing highly cited scientific papers, and making substantial contributions to the research community. Yet, their discoveries are often left “in the attic,” uncommercialized and underutilized, suggesting a possible waste of human and intellectual resources. These “Cassatts in the Attic,” represents missed opportunities to enhance societal welfare and economic prosperity.

This research also shows that the gender gap in commercialization is not just a women’s issue; it is an issue that affects all of us. In fact, it might stifle innovation, limit economic growth, and prevent society from fully benefiting from the contributions of half its population. So, it is essential to remember to promote inclusivity and diversity in all stages of the invention process and extend our efforts beyond the early stages of recruiting and training new STEM talent. We also must help those diverse voices in the critical process of commercializing scientific discoveries. This collective effort should involve all stakeholders, including government, firms, investors, universities, and scientists themselves.

Brilliant minds surround us from all types of backgrounds (gender, race, socio-demographic,…), possibly holding valuable insights that have the potential to shape our world. However, it is our responsibility to ensure that these ideas are not confined and hidden away but brought into the light where they can truly make a difference.

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Guest Post by Kevin Ahlstrom: Closing the Gender Innovation Gap with Guided Inventor Sessions

(Guest Post by Kevin Ahlstrom, Associate General Counsel, Patents, Meta. This post is part of a series by the Diversity Pilots Initiative, which advances inclusive innovation through rigorous research. The first blog in the series is here and resources from the first conference of the initiative are available here. – Jason)

Kevin Ahlstrom headshot

Guided invention sessions not only increase idea submission rates but also transform individuals’ perception of themselves as inventors. By creating a supportive environment and equipping participants with the necessary tools, these sessions pave the way for gender equality in patenting.

Women submit ideas for patenting at a lower rate than men

In 2021, I noticed that most of the ideas I received for patenting came from men. At Meta, employees are encouraged to submit patent ideas through an inventor portal. Women submitted less than 10% of the ideas I received, despite making up more than 30% of the technical and design roles in the organizations I supported. I was chatting with a research scientist about this, and I asked her why she didn’t submit more of her ideas for patenting. She said, “I tend to minimize my contributions compared to others on my team. I sometimes think that the big patentable ideas are for people above my paygrade.”

Another female UI designer said, “We are all often working on things with many other people, and so it can feel presumptuous to claim ‘ownership’ over an idea. Vying for credit can bring up yucky shame feelings in me when I have been trained by our culture to make people happy, to support others, to help.”

I realized there were stark differences between the way that I, a male patent attorney, and many of my female coworkers view the invention process and related work. There are likely many causes for this engagement gap:

  • differences in social expectations between men and women;
  • fewer historical female inventor role models;
  • women may be implicitly penalized for claiming ownership and credit;
  • women often take on the unpaid labor of home and childcare responsibilities, leaving less time or energy for patent activities.

Regardless of the cause, it was clear that I could not rely solely on our inventor portal to capture women-generated innovation.

As my team and I searched for solutions, I initially wanted to hold training sessions for women on how to submit and advocate for their ideas. That’s what the men did – they submitted frequently and argued with me frequently; consequently, I approved more of their ideas for patenting. But why should we train women to act more like men? It didn’t make sense to ask women to change their behavior to fit inside a system that wasn’t designed for them. Instead of more training, we needed a change in our system to meet innovators where they were.

The Patent Team at Meta has been working on this issue for years. Together, we have made large strides in creating a patent program that is equitable and accessible to everyone. We’ve surveyed employees to better understand their needs, we’ve revamped our inventor portal to be more inclusive, we’ve held conferences and forums to spotlight diverse inventors and encourage other companies to improve, and much more.

Our Pilot: how to double women’s idea submission rate with guided invention sessions

A main component of our efforts has been implementing guided invention sessions for underrepresented inventors. Before I explain how to run one, I just want to say that guided invention sessions work. During the months in which we initially implemented these sessions, I saw the invention submission rate from women more than double: among orgs I support, ideas coming from women rose from less than 10% to 22%. Not quite the 30% needed for gender parity, but this is significant progress.

Here’s how it works. We model the guided invention sessions after the 6-3-5 Brainwriting Method, which is a proven way to come up with lots of ideas in an hour or less. Here’s a quick breakdown of the process:

  • 5-7 participants gather to ideate around a single problem. The problem can be anything, but ideally should encourage patentable ideas that align with company goals.
  • The sessions consist of two meetings, each lasting one hour. At the first meeting, participants brainstorm using the 6-3-5 method. This can be done in-person on sheets of paper or virtually using a remote collaboration tool like Google Sheets, Slides, or Figma.
  • The first meeting is broken up into multiple 5-8 minute segments where participants use the collaboration tool to write solutions to the problem.
  • At the end of each 5-8 minute segment, papers are passed and a new segment begins. Each participant can either write down new ideas or build on the existing ones from previous segments.
  • At the end of this first 60-minute meeting, the group will have generated 40-60 solutions to the problem.

Between the first and second meeting, a patent attorney reviews the ideas and selects the most patentable ideas for further discussion. At the second meeting, the group discusses 2-4 of the selected ideas to build on. I encourage as much detail as possible in this meeting, so that by the end we have enough detail to begin drafting one or more patent applications.

In terms of cadence, we have found that doing guided invention sessions once per half produces strong patents, gives inventors something to look forward to, and avoids putting too much burden on patent counsel.

Conclusion: help people become confident and comfortable with patents

In my opinion, the most remarkable result of these sessions has been the inventor transformation. Session participants realize what it takes to generate a patentable idea, and after participating in the process, they are much more likely to become repeat inventors. After attending her first guided inventor session, the research scientist who thought patents were above her paygrade has since submitted 16 ideas for patenting and has 6 patent applications to her name.

Another participant said, “I didn’t know I was an inventor until I attended this workshop.”

Just to drive the point home: guided invention sessions immediately boost the idea rate coming from underrepresented inventors. Participants find the sessions fulfilling and leave confident and excited to patent their innovations.

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Three main takeaways:

  1. A variety of societal expectations and gender norms has resulted in a significant disparity in patent idea submissions between men and women.
  2. Guided invention sessions have proven to be a game-changer in boosting idea submissions from underrepresented inventors. By providing a structured and inclusive platform for brainstorming, these sessions empower women and other underrepresented inventor groups to participate confidently in the patenting process.
  3. Guided invention sessions not only increase idea submission rates but also transform individuals’ perception of themselves as inventors. By creating a supportive environment and equipping participants with the necessary tools, these sessions pave the way for gender equality in patenting.