Organizations, such as law firms, can also track their diversity metrics with respect to the clients and inventors they serve, e.g., by tracking the number of matters handled for diverse inventors, or clients who are, employ, or are owned or led by a significant percentage of diverse individuals.

However, the BPLA wishes to caution that public disclosure of diversity metrics may have the potential to backfire in some cases. For example, an organization that receives a poor metric for diversity could view itself as being so far behind in these efforts that it is simply not worth trying to catch up. In fact, a similar situation is reported in Japan in response to former Prime Minister Shinzo Abe’s “womenomics” policy. In particular, this policy pushed Japanese companies to include more females in the workforce, including 30% of management positions in government and industry. It is reported that some companies, after failing to meet targets, “have stopped promoting gender diversity.” See Katsumori Matsuoka, Japan’s Chemical Industry Inches Toward Gender Diversity, C&EN Volume 99, Issue 1 (Jan. 2, 2021), https://cen.acs.org/careers/diversity/Japans-chemical-industry-inches-toward/99/i1. Consideration should therefore be given to recognition of organizations that have achieved exceptional levels of diversity, without focusing on those that are underperforming in this respect, to ensure that progress towards diversity remains a uniformly desirable achievement.

In addition, organizations such as law firms, bar associations, and government agencies could consider hosting fairs or workshops in different communities seen as lacking representation in the innovation ecosystem. This would provide the opportunity for prospective innovators to connect with those in the IP system to receive important information that will foster access and interface with that system.

Other avenues, such as traditional media, social media, and perhaps electronic gaming venues, could also be leveraged as channels of concept communication to a broad spectrum of prospective innovators, particularly younger demographics. Another example for consideration is the employment of celebrities or visual media to help expand public awareness of IP. The impact of “Shark Tank” on public awareness of certain facets of the entrepreneurial undertaking is readily apparent; a similar production focusing on intellectual property could be an effective mode of outreach.

That said, outreach to technical schools could provide relatively low-hanging fruit for broadening public awareness of intellectual property. In addition, the focus for secondary, college, university, and law school curricula could be on IP as a business tool and a career path, which would also increase awareness that could open up additional paths to greater diversity.

Extracurricular outreach could also be useful in reinforcing the importance of IP to students. For example, interface with school guidance counselors (emphasizing IP as a future career option or involvement with the IP system as a method to improve chances for college admission), school clubs (e.g., Future Business Leaders of America, Robotics Clubs, Science Clubs), and other organizations (e.g., the Girl Scouts and their Intellectual Property patch program (USPTO Kids IP Patch FAQ, https://www.uspto.gov/kids/patchFAQ.html (last visited Feb. 22, 2021), developed with the USPTO and in collaboration with the Intellectual Property Owners Education Foundation) provide additional avenues for emphasis on innovation. While national or regional efforts towards this goal will likely be an important piece of the puzzle, special attention should be paid to leveraging existing connections to target populations through local organizations, such as those focused on promotion of STEM. For example, numerous organizations operating in the Boston area already have inroads to reaching female students and students of color, and could be instrumental in the promotion of IP education to those future innovators. See, e.g., Boston After School & Beyond’s BoSTEM Program, https://bostonbeyond.org/approach/innovation/stem/ (last visited Feb. 22, 2021) (whose mission is bringing high-quality STEM opportunities to every Boston middle schooler through an innovative citywide coalition of nonprofits, schools, researchers, and industry partners, with a focus on closing the opportunity and achievement gap for youth traditionally underrepresented in STEM); National Society of Black Engineers Boston Professionals, https://www.nsbeboston.org/ (last visited Feb. 22, 2021) (dedicated to the academic and professional success of Black/African American engineering students and professionals and their “Be 1 of 10,000 Black Engineers” campaign, aimed at increasing access to resources & diversity in STEM). These and other organizations have connections with communities at the local level across the country. See Techbridge Girls, https://www.techbridgegirls.org/ (last visited Feb. 22, 2021) (focusing on exciting, educating, and equipping girls, including cis girls, trans youth, gender non-conforming and/or non-binary youth, from low-income communities by delivering high-quality STEM programming that empowers achievement of economic mobility and better life chances, with offices in California, the Pacific Northwest and the Washington, DC Metro Area); Scientista Foundation, http://www.scientistafoundation.com/ (last visited Feb. 22, 2021) (aimed at empowering pre-professional women in science, technology, engineering and math (STEM) through content, communities, and conferences, with chapters at universities across the U.S.).

Importantly, the BPLA believes that a holistic approach is more likely to result in successful and consistent implementation of IP education components into curricula. For example, IP attorneys might present to a high school principal and teachers on the IP system and its potential value to their students. The teachers could then implement corresponding modules in their classes, and a student could then learn about IP as a career from their chemistry teacher or in a science club. The student might next meet with their guidance counselor, who could provide information on colleges that have strong chemistry and pre-law courses.

The burden of developing an IP curriculum or module is not insubstantial, and is magnified when considering the multiple contexts, educational levels, and time constraints that apply for each implementation. For this reason, model curricula could be extremely helpful for these efforts. The BPLA believes that the USPTO may be in a unique position to leverage other governmental institutions or establish contacts with such institutions for this purpose, as discussed below. Law firms and bar associations could also develop and offer curriculum materials and training to explain how IP helps inventors form and grow businesses based on their innovation.

Substantively, while the content of any IP curriculum is likely to vary depending on context and implementation, any curriculum should make clear that the IP system is designed to serve all individuals. Not only is the system actively seeking participation from diverse populations, but there is no requirement for a particular level of education, employment, or profession in order to utilize IP. In other words, anyone can invent, participate in the IP system, and reap its benefits. This message could be reinforced by inclusion of real-world examples of inventors, their inventions, and businesses led by those from diverse backgrounds, educations, and of various ages, and demonstrate how the IP system bolstered their success. Examples could include talks from diverse high school students who leveraged the IP system to launch a business or get into college, a child inventor whose products have been commercialized, a female inventor who acquired a patent that enabled her company to gain a foothold in the marketplace, or an artist based in a rural community that used IP to protect their work while bringing it to a wider audience.

Educational institutions, industry, and government each have distinct and important roles to play in infusing innovation education. For example, law firms and government can apply pressure from the top down by indicating that they want more diverse applicants interested in IP, and that they believe this starts with IP education. Offering internships to diverse individuals interested in IP would be a concrete way of communicating this desire. Law schools and universities would then seek to meet that need by improving diversity and IP education efforts, potentially by offering scholarships to diverse applicants interested in IP. This would in turn urge college and high school administrations to improve their own IP education efforts in order to seize the opportunities presented and meet the needs of the industry. Those administrations might implement improvements with efforts such as curricula changes and improved guidance and career counseling. In short, industry and government can foster change by taking action to convey to diverse students that “we have a burgeoning industry and we need people like you.”

Government can play other roles in this effort. For example, the USPTO may be in a unique position to leverage or establish contacts with other governmental institutions (such as the Department of Education) to form a joint effort to implement the development of model IP curricula or modules. These efforts would help to meet common goals of increasing diversity in the workforce and broadening the base of U.S. businesses, particularly in communities with diverse populations.

As another path, the USPTO should also consider establishment of pilot programs directed to inventors or applicants who are (or employ a certain percentage of) diverse individuals. Examples would include reduced or waived fees, additional discretion for examiner interviews during patent or trademark prosecution, or training modules or symposia directed to communities with significant diverse populations.

In addition to the recommendations above, the BPLA believes that offering scholarships, internships, and training to diverse applicants is a powerful tool to increase innovation. These efforts can also help establish connections between organizations and educational institutions to bolster the ranks of those organizations with a more diverse base of employees.

Research demonstrates that implicit bias is pervasive, pernicious, and presents a substantive barrier to creation of inclusive workplaces that foster innovation and creativity. Implicit bias training is a key first step to raise awareness of these biases and the associated barriers, as well as begin to break them down. However, this is a long process and not a one- and-done type endeavor. For this reason, organizations should not only hold ongoing trainings, but also consider other measures to ensure that facts on the ground show the erasure of these impediments (e.g., anonymous surveying as to incidents of bias experienced, where past instances were identified and changes made, etc.). Open discussion (formal or informal) can also be a powerful tool to break down bias-based barriers. Topics like bias have often been considered taboo for discussion in the workplace, but meeting these barriers head-on in an honest way is an important step in their eventual removal.

Another major barrier to the inclusion of people from underrepresented groups in a workplace culture that fosters innovation is the lack of access to informal networks and training. Steps should be taken to encourage such networks and training for diverse employees. In addition, more transparency and clarity as to criteria for advancement will help level the playing field for diverse employees and foster the formation of an inclusive work environment, which itself will boost creativity and innovation.

Boston Patent Law Association

Nicole A. Palmer

Matthew R. Van Eman

Mary Lou Wakimura