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IP attorney’s advice to women inventors: use your patent law leverage - if you are part of the invention, you legally deserve the mention

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October 22, 2020
Troy, Mich.---The U.S. Patent and Trademark Office (USPTO) recently issued Progress and Potential: 2020 Update on U.S. Women Inventor – Patentees, reporting a key finding that “more women are entering and staying active in the patent system than ever before.”  William H. Honaker, a member partner of Dickinson Wright and prolific writer on culture and trends impacting IP, has more than 35 years of experience as an intellectual property attorney. Honaker looks closer at the USPTO’s finding on women and patents and believes there is much room for improvement.
 
“The USPTO findings sound great, but they are misleading,” Honaker said.  “The ‘Women Inventor Rate’ (WIR)—the share of U.S. inventors receiving patents who are women—in reality increased only 0.7% in three years, from 12.1% to 12.8%.  Stated another way, men are still getting almost 90% of all patents.”
 
As a former Patent Office Examiner, Honaker was unable to recall a single woman inventor, and as a practicing attorney, has only represented a handful of women inventors—most of whom were in large companies with healthy research budgets.
 
“In my opinion, the report’s numbers are likely masking an even more troubling statistic,” he said. “Women entrepreneurs and women in small businesses may have even lower patent numbers.”
 
Honaker said two factors are often cited to explain the discrepancy in the numbers.
 
1.) Innovation Pipeline: The Hamilton Project’s 2017 report, Eleven Factors About Innovation and Patents, finds that:
 
  • 57% of women get a Bachelor of Science degree but only 35% of those are in STEM (Science, Technology, Engineering and Math) programs
  • Women make up 22% of the STEM workforce and are responsible for only 16% of granted patents
  • Gaps also emerge after college, as women with STEM degrees are more likely than their male counterparts to work in education or health care rather than in STEM field
 
2.) Organizational climate and longevity in a STEM field:
The Society of Women Engineers reported in November 2019 that only 13% of engineers in the workforce are women, and only 30% of women who earn undergraduate engineering degrees are still in engineering 20 years later. Nearly one third of women who leave engineering cite organizational climate as the reason for leaving.
 
“In some businesses, deciding who to name as an inventor can be arbitrary and political,” Honaker said, “but the decision is a legal question and gives every woman a valuable tool to ensure their inclusion.”
 
He offers women inventors two considerations in ensuring that they are not only recognized by their organization, but also listed as inventors on patents:
 
  • U.S. Patent Law Requires that True Inventors be Named
U.S. patent laws require that a patent list the true inventors. If not accurate, it has to be corrected, or the patent can be invalidated and lost. There are huge risks in playing games with naming inventors. A valuable patent could become worthless. This is the leverage women have. They should remind those involved in listing the inventors of their involvement and the absolute requirement that all inventors be named. No one wants to risk leaving an inventor off of a patent.
 
  • How to Know when You Should Be Named as an Inventor
The determination can be complicated, but a simple way to think about it is by whoever figured out the complete invention (this can be multiple people) as stated in any claim (this can be a small part of the entire invention) and did not need to experiment or consult experts. If one contributed even a small part to the invention in any claim, or a small part of the overall invention, that person could be classified as an inventor. The ultimate answer will very well likely be determined by a patent attorney; if this is the case, then women need to let that attorney know how they contributed so that a proper decision can be made. The attorney will make the ultimate decision based on the facts and the law—and not possible ulterior motives like organizational climate.
 
“More women should be patentees and assert their rights to patent protection, and if they think they should be listed as an inventor, the law is on their side,” Honaker said. “Women are equally entitled (required even) by law to be named, and businesses don’t want to risk losing valuable patent rights, so regardless of the organizational environment, women can use their patent law leverage to be certain they are named as inventors.”
 
About Dickinson Wright PLLC
Dickinson Wright PLLC is a general practice business law firm with more than 475 attorneys among more than 40 practice areas and 16 industry groups. The firm has 18 offices, including six in Michigan (Detroit, Troy, Ann Arbor, Lansing, Grand Rapids, and Saginaw) and 11 other domestic offices in Austin and El Paso, Texas; Columbus, Ohio; Ft. Lauderdale, Fla.; Lexington, Ky.; Nashville, Tenn.; Las Vegas and Reno, Nev.; Phoenix, Ariz.; Silicon Valley, Calif.; and Washington, D.C. The firm’s Canadian office is located in Toronto.
 
Dickinson Wright offers our clients a distinctive combination of superb client service, exceptional quality, value for fees, industry expertise, and business acumen. As one of the few law firms with ISO/IEC 27001:2013 certification and one of the only firms with ISO/IEC 27701:2019 certification, Dickinson Wright has built state-of-the-art, independently-verified risk management procedures, security controls and privacy processes for our commercial transactions. Dickinson Wright lawyers are known for delivering commercially oriented advice on sophisticated transactions and have a remarkable record of wins in high-stakes litigation. Dickinson Wright lawyers are regularly cited for their expertise and experience by Chambers, Best Lawyers, Super Lawyers, and other leading independent law firm evaluating organizations.
 
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Contact:
Kelly Durso, Public Relations Manager
KDurso@dickinson-wright.com, (313) 223-3085

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