A bipartisan group of Senators, including the Chair and ranking minority member of the Subcommittee on Intellectual Property, has proposed legislation that would allow the US Patent & Trademark Office to collect demographic data on patent applicants. The bill, known as the Inventor Diversity for Economic Advancement Act of 2021 or, more simply, the “IDEA Act,” comes as a response to increasing public concerns about the lack of diversity among inventors named on patents, and the inability of the USPTO to provide data to reliably assess the situation. The “idea” hearkens to a primary maxim of business that, “if you can’t measure it, you can’t improve it.” Like many other government programs, it would empower the USPTO to collect such data on a voluntary basis, and require the USPTO to report on any such data provided.  

The IDEA Act provides, specifically, as follows:

The Director shall provide for the collection of demographic information, including gender, race, military or veteran status, and any other demographic category that the Director determines appropriate, related to each inventor listed with an application for patent, that may be submitted voluntarily by that inventor.”

As explained by Law360, the bill was revived after a similar effort failed during the last term. The previous version of the bill included provisions for collecting data on sexual orientation, ethnicity, age, national origin, educational level, and disability, and at least some of these categories raised concerns. The current version requires the collection of only gender, race, and military or veteran status.

The IDEA Act further provides that any such information provided by an applicant will be kept “confidential and separate from the application for patent” — a provision that would help avoid implicit biases during the patent examination process.

Ironically, current assessments of the gender diversity of inventors named on patents are based on statistical inferences from the inventor’s first name — information that is readily available to Examiners. Moreover, a study published in Nature Biotechnology in 2018 by Kyle Jensen, Balazs Kovacs, and Olav Sorenson, reported that some outcomes in prosecution of some patents are biased against inventors having female names. It is well-established that gender blind evaluations help eliminate gender bias, as shown for example by gender-blind auditions for female musicians. The same should be true for those named as inventors on a patent application, and keeping inventor names “confidential and separate from the application for patent” would be in keeping with the proposed protections of the IDEA Act.

In addition to empowering the USPTO to collect demographic data, the IDEA Act would also require the USPTO to analyze and report on the data collected. In particular, it requires the USPTO to make an annual report addressing demographic diversity in patent applications and issued patents. This report would identify the total number of patent applications, and the total number of issued patents, according to the following:

  • Gender of each named inventor;
  • Race of each named inventor;
  • Military or veteran status of each named inventor;
  • Country of residence; and
  • For US inventors, the state of residence of each named inventor.

The IDEA Act has relatively extensive provisions regarding access to any information disclosed. The USPTO would be required to establish procedures to ensure confidentiality of the information, the information would be exempt from disclosure under section 552(b)(3) of the Freedom of Information Act, and no personally identifying information could be disclosed in any reports.

Industry groups have voiced support for the IDEA Act, including the President of the Biotechnology Innovation Organization (BIO)’s statement. The Intellectual Property Owners Association (IPO) sent letters to the House and Senate expressing support for the bill.

 

Copyright 2021 Squire Patton Boggs