Diversity & Inclusion

In June 2021 CIPA established a committee, for which I volunteered in late 2021, whose focus is on the diversity and inclusivity (D&I) aspects of our IP work and our membership. One of the first things that we seek to do is to engage with yourselves, CIPA members, to ensure that we all have a common understanding of what we are trying to achieve in this area and to find out how we, the committee, can support your efforts to do so.

This article was first published in the June 2022 issue of the CIPA Journal.

My assumption – D&I are simply among the right targets for CIPA members

Although approved for publication by the D&I committee, the views expressed here are my own, and I shall be completely frank: I don’t think that the diversity of our membership reflects closely enough the diversity of the world in which we live and work. And why do I think it should? Simply, because it appears to me to be the ethically and morally justifiable stance to take. In other words, my view is that CIPA needs to promote and support greater diversity amongst our membership, because it is the ‘right thing to do’.

Moreover, I think that it axiomatic that we should be aiming to create an environment amongst our membership – both individuals and organisations – that is equitable and inclusive. All members should be heard, seen, feel valued and have a sense of belonging, without needing to justify their presence beyond satisfying the published membership requirements – and potential, future members should be able to perceive this inclusivity or they won’t want to join us – a bleak prospect for the future of our institute our profession, and our businesses.

So, where are we on D&I – what’s the problem?

I don’t think that we have yet achieved D&I as fully as we could: there have been significant steps forward – particularly regarding the numbers of women – but we have not reached parity, at least qualitatively. When I joined CIPA in 1979, the large majority consisted of white, 100% able-bodied and healthy-minded, heterosexual men from Oxbridge (or closely similar), from middle-upper class CofE backgrounds. I don’t suppose that these members ever felt that they had to:

• do more than simply meet the written membership requirements to justify their membership of CIPA; and/or
• (ii) point out their contribution (or potential contribution) to their organisations’ ‘bottom lines’ – i.e., argue a so-called ‘business case’

before feeling included and accepted.

The majority of the membership at that time seemed generally to assume that, if they satisfied the educational/training/qualification conditions for membership and paid (or had paid for them) their fees, then they were entitled to be here – no additional justification or ‘business case’ was required. Fair enough? Yes, indeed! But then that should surely apply to all of us members, including women and those from other minority groups.

However, there is much published research^[1], that demonstrates that people from minority groups do (in practice) have to go the extra mile; at least, they have to work harder or jump more hurdles to achieve the same recognition and reward as the majority – I certainly did. Those from minority groups are also often not allowed to make the average number or type of mistakes made by the majority, or are judged more harshly when they (inevitably, like all humans) do commit errors or fail to achieve a goal.

Learned papers on ‘imposter syndrome’ and the like also abound^[2], demonstrating that, even when admitted to organisations, many from various minority groups do not feel like they belong there. They do not believe that they ‘deserve’ to be part of or are accepted by their organisation(s). So, it is not enough simply to increase the numbers of people from diverse backgrounds in our membership – i.e., to increase diversity, which we have done to some extent in the last four decades; we also have to enable everyone to feel and become an equal part of CIPA and those member organisations that employ them – i.e. to increase inclusivity.

But what about the ‘business case’?

I hinted above at another set of reasons for aiming at increased D&I, besides the moral and ethical ones: the so-called ‘business case’ for diversity. I am not particularly in favour of focusing on these reasons, because business cases are usually reduced to numbers. When in senior management roles, I had to produce many of these documents, which are often (necessarily) quantitative analyses; they focus on higher profit, better EBIDTA, greater turnover, or other ‘bottom line’ benefits. Again being frank, when reduced to monetary value or other numerical parameters, these numbers rarely stack clearly in favour of D&I, especially in the shortish term.

That’s not to say that there is no monetary benefit, but just that it is very hard to prove in a statistically meaningful way; there are simply too many variables in a business to isolate one such as ‘diversity’, and compare ‘before’ and ‘after’ figures in a convincing way. In any case: before and after what? Before and after you had a recruitment drive to increase diversity, or before and after a team started to reflect the diversity of the clients whose services it was providing, or some other comparative scenario?

Furthermore, there is a plethora of research^[3] to show that what you do after you increase diversity (numerically) is key to its success, however measured. The extent to which inclusivity is embraced and how the more diverse teams are used or co-operate (or not!) significantly affects the outcomes from increasing diversity. Sometimes, the measured parameters (profit, etc.) can decrease after a drive to increase diversity, simply because no-one has thought about how to enable people from such varied backgrounds to understand each other so that they can effectively work together. Diversity is not a magic pill, and is unlikely to compensate for poor leadership skills or to be effective unless treated as integral to business strategy rather than an add-on.

Data that support the financial benefit to organisations of a committed D&I policy do exist, but they are (in my view as a scientist and business person) not robust (causal rather than correlatory) or directly applicable to our situations^[4]. Nevertheless, the latest analysis by McKinsey & Co^[5] reaffirms the strong business case, based on a measure of profitability, for both gender diversity and ethnic & cultural diversity in corporate leadership.

Besides the moral/ethical view, why else bother with D&I?

Yet there are other business reasons – qualitatively if not quantitatively self-evident – for implementing a D&I policy within CIPA and our members’ organisations. Here are some examples:

1. Many intellectual property offices with which we frequently deal have active D&I policies, and it therefore makes at least operational sense for those of us who interact with them to reflect a similar stance on D&I:

• The UK IPO ‘is committed to promoting equality and valuing diversity in the way we deliver our services and the way we manage our employees. We strive to be inclusive through respecting one another, promoting and achieving equality of opportunity, valuing diversity, and providing an accessible, responsive service to our customers’.^[6]
• The EPO, as well as having recently amended its Guidelines to use gender-neutral language, has issued a specific statement to the effect that it ‘fosters diversity and inclusion [and provides] fair and equal opportunities for all staff, regardless of nationality, belief, gender, origin, health and sexual orientation or identity… The EPO has an inclusive work environment and culture, and promotes this diversity in all activities, whether conferences, e-learning materials, awareness campaigns, networking or other events’.^[7] The EPO ‘published a list of ten inclusive behaviours in July, identifying positive actions to create an inclusive culture at the EPO and complement the values of trust, fairness and respect embedded in the Strategic Plan 2023’.^[8] The EPO also has ‘a dedicated recruitment campaign for professionals from under-represented groups that are targeted for Diversity [sic] management’.^[9]
• The USPTO ‘regularly carries out different actions aimed at promoting openness and transparency to demonstrate equal opportunities based on merit in recruitment and career progression processes’.^[10] An exemplary action is a survey for ideas to help to expand the ‘innovation ecosystem to include all individuals, including those from underrepresented socioeconomic, geographic, and demographic groups’.^[11] Last year, the PTAB’s Diversity, Equity & Inclusion committee produced a report, stating that the USPTO ‘strives to be the world’s premier intellectual property organization and a model employer by leveraging diversity and fostering inclusion to deliver the best public service’.^[12]

2. Other IP professional organisations (than CIPA) are active in the D&I space. The members of these are either our clients or potential clients, or our competitors or potential competitors, or both. If organisations, such as FICPI, AIPPI, the American Bar Association, epi, etc., are attentive to D&I issues or are actively supporting and encouraging D&I, then CIPA members cannot afford not to be.

The European Patent Institute (epi) recently set up a working group (in which I participate) to provide information, support and suchlike to epi members, many of whom are also CIPA members. We have recently produced a draft D&I policy, which is under consideration by epi’s Council, and published a background article to raise awareness of D&I within epi and its membership^[13].

Other professional IP organisations, such as in the USA and Australia, also have a D&I focus:

• The mission of AIPLA (American Intellectual Property Law Association) ‘is to lead and serve a diverse IP community by enhancing knowledge and shaping the future of IP law. AIPLA believes that diversity among its membership is essential to our ability to accomplish this mission. … Because diversity and individual uniqueness brings [sic] creativity and vitality to an organization, we recognize the importance of diversity to AIPLA. We are, therefore, committed to providing an environment of fairness and equitable treatment of everyone, regardless of gender, race, creed, age, sexual orientation, national origin, disability, or class’.^[14]
• The American Bar Association believes the D&I issue to be so important that it has created several diversity resources, including the: Office of Diversity and Inclusion, Commission on Disability Rights, Center for Racial and Ethnic Diversity, Commission on Women in the Profession, Commission on Sexual Orientation and Gender Identity, and Task Force on Gender Equity. There are also numerous affinity groups for lawyers, focusing on various ethnic and other characteristics^[15].
• US Certified Patent Practitioners: The National Council on Patent Practicum, Inc. (NCPP) oversees the development and operation of the Certified Patent Practitioner (CPP) programme covering patent drafting and prosecution. For 10 years, the NCPP has worked to diversify the ranks of patent agents and technical specialists. They have recently teamed up with facebook™ to promote their patent pipeline pledge, aimed at investing in individual and firm-wide diversity of patent practitioners (mentioned again, below)^[16].
• The Institute of Patent and Trade Mark Attorneys of Australia (IPTA) ‘promotes diversity and inclusion amongst the IPTA membership and the wider profession’.^[17] IPTA makes the point that ‘[p]ractitioners from diverse backgrounds bring a range of unique skills and experiences, which ultimately benefit the profession, our clients and wider community through greater innovation, higher performance, retention of talent, improved practitioner wellbeing and engagement, and lower levels of harassment and discrimination’.^[18]

To the extent that some members of these organisations are our competitors or potential competitors, we shall be or are competing for the same end-clients (e.g. companies, academic institutions, etc., as well as other law firms). Therefore, we must be able to offer at least what they are offering that is of potential interest to these end-clients; we cannot afford – from a business perspective – to lag behind.

3. Clients and potential clients

Of course, many of the members of these IP professional organisations and others mentioned in section 2, above, are our direct clients – or are potentially our clients.

It is well-known that client firms tend to favour instructing firms and employing people that are a good fit with them in terms of values, culture, working practices, and the like. At the most basic level, people also often find it easier to work with others for whom they feel an affinity or with whom they can identify in some way. It is this factor that can lead to firms recruiting ‘in their own image’, tending to a decrease (or, at best, stasis) in diversity. But, if our clients and potential clients are actively pursuing diversity within their firms, then increasingly we (as their representatives) shall need to reflect a diverse range of people, and the values, culture, etc, which they embody.

Furthermore, clients other than those within IP professional organisations are mandating D&I criteria to their IP service providers; many of these are global organisations and/or big household names. It is becoming more frequently the case that such companies are now both dictating qualitatively who does their casework and mandating a certain level of D&I in their outsource firms. The consequences of not meeting these clients’ D&I criteria can be as draconian as being dropped from their panel of external lawyers and/or being subject to fines or non-payment of bills otherwise due. Examples follow:

• Many of you will have heard of the ‘Mansfield Rule’, the goal of which ‘is to boost the representation of historically underrepresented lawyers in law firm leadership… [I]t has become the standard by which law firms track and measure that they have affirmatively considered at least thirty per cent women, lawyers from underrepresented racial/ethnic groups, lawyers with disabilities, and LGBTQ+ lawyers for top leadership roles, senior-level lateral hiring, promotions into the equity partnership, and participation in client pitch meetings’.^[19] Begun in the US, this is now being rolled out to Canada and, since June 2021, the UK where ten UK-based law firms blazed the trail, including Taylor Wessing, Bird & Bird, Hogan Lovells, Clyde & Co., Allen & Overy, amongst others.
• Some companies use the (now discredited) so-called Coca-Cola® ‘Heavy Stick’ approach, which actively punished firms that did not meet certain diversity requirements. According to a January 2021 article by Bloomberg Law, ‘Coca-Cola® is forcing its outside counsel to staff at least 30% of new matters with diverse attorneys, with at least half of that billable time going to Black lawyers in particular’.^[20] Apparently, the company would withhold a non-refundable 30% of fees from firms that fail to meet these requirements. However, after senior staffing changes at Coca-Cola®, the mandatory aspect of this policy has now been scrapped^[21]; nevertheless, the spirit of the policy will probably linger on.
• Another real D&I change-maker is facebook™’s promise to send more patent legal work to law firms that agree to hire NCPP-certified graduates (see section 2). This may mean that those firms which do not, will lose out. Jeremiah Chan, head of patents, licensing and open source at facebook™, says that the IP community has talked for years about its lack of diversity, but that not enough has been done to solve the problem. ‘At facebook™, we decided that enough is enough. It is time for change,’ he says^[22].
• Other big-name multinationals, such as IBM™ has also said that it will be joining the NCPP programme ‘to enable positive change… to help develop diverse patent professional talent for the betterment of the entire patent legal ecosystem’.^[23] Hewlett-Packard Company (HP™) recently informed its outside counsel from firms having at least ten lawyers that it may withhold up to 10% of invoiced fees for failure to meet its ‘diversity holdback’ mandate^[24]. Some companies, such as Shell Oil Company, Wells Fargo & Company, and Merck & Co., Inc. evaluate the diversity data of their outside counsel^[25].
• More than 1,000 European companies have already signed up to the European Diversity Charter.^[26] By signing a diversity charter, an organisation commits to promoting diversity and equal opportunities for its staff.

We therefore know that commercial organisations and law firms, each of which provide work to CIPA members, are diversifying quickly and/or insisting that we do so; diversity, particularly in the UK and other European populations plus the USA, is impacting the IP landscape in which we work.

Conclusion and request

D&I considerations, and efforts to increase both, are regarded by many of our clients and potential clients, and in many cases our employees – present and future, as economically imperative in order to do or continue doing business in a global society. Those in the IP field – and therefore we CIPA members – need to promote diversity, not least because our clients and colleagues are requiring more diverse representation.

To obtain the best outcomes from D&I policies and practices, that statistically benefit the ‘bottom line’, we need to foster inclusivity. And even if we cannot, at least in the short term, see a measurable, quantitative improvement in our businesses, then we – and our clients and colleagues – can at least know that we are engaging in professional practices that are morally and ethically supportable.

I started by mentioning that the CIPA D&I committee would like to engage with and support you in the D&I area: therefore, if you have any comments (including disagreement), suggestions and/or requests for help on any matters involving equality, diversity and inclusion, please do get in touch – with me or another committee member directly, or via CIPA or this journal. Thank you.

Julie Barrett, Senior Consultant, Purposive Step Consulting

[1] Some examples are cited in https://eos.org/opinions/moving-beyond-the-business-case-for-diversity by Haacker et al (09Feb2022)

[2] An interesting introduction to the topic can be found at: https://hbr.org/2021/07/end-imposter-syndrome-in-your-workplace (14Jul2021)

[3] Some is cited in: BIS Economics Papers: The Business Case for Equality and Diversity: a survey of the academic literature (Jan 2013)

[4] Armstrong et al: The impact of diversity and equality management on firm performance: Beyond high performance work systems J. Human Resource Management 49(6): 977-998 (Nov 2010), DOI:10.1002/hrm.20391

[5] McKinsey & Co, Diversity Wins: How Inclusion Matters (May 2020)

[6] https://www.gov.uk/government/organisations/intellectual-property-office/about/equality-and-diversity

[7] https://jobs.epo.org/content/Diversity-and-Inclusion/?locale=en_GB

[8] https://www.epo.org/about-us/annual-reports-statistics/annual-report/2020/goal1.html

[9] https://jobs.epo.org/content/Diversity-and-Inclusion/

[10] https://www.hyaip.com/en/news/the-world-of-intellectual-property-joins-pride-day-activities/

[11] 85FR83906; reported at https://ficpi.org/search?website_search_api_fulltext=diversity

[12] https://www.uspto.gov/sites/default/files/documents/PTABBoardsideChatPTABDEICommitteeFebruary2022.pdf

[13] https://information.patentepi.org/issue-1-2022/diversity.html

[14] https://www.aipla.org/about/abohttps://information.patentepi.org/issue-1-2022/diversity.htmlut-us/Diversity-Statement#

[15] reported at https://www.americanbar.org/groups/intellectual_property_law/publications/landslide/2017-18/march-april/diversifying-intellectual-property-law/

[16] https://members.thencpp.org/ppp-pledge?platform=hootsuite&utm_campaign=HSCampaign0721&r_done=1

[17] https://ipta.org.au/attorneys/diversityandinclusion/

[18] Ibid.

[19] https://www.diversitylab.com/pilot-projects/mansfield-rule-5-us-uk-canada/

[20] Coke GC Tired of ‘Good Intentions,’ Wants Firm Diversity Now, Bloomberg Law (January 2021), cited in https://www.ipwatchdog.com/2021/03/15/ensuring-women-diverse-candidates-patent-bar-must-address-root-problem/id=130896/

[21] https://news.bloomberglaw.com/in-house-counsel/coca-cola-scraps-diversity-requirements-for-outside-law-firms?context=article-related

[22] reported in https://www.iam-media.com/facebook-partners-non-profit-patent-pipeline-programme-boost-women-minority-hires; 12Oct2021

[23] Quoted in https://www.iam-media.com/facebook-partners-non-profit-patent-pipeline-programme-boost-women-minority-hires (12Oct2021)

[24] reported, https://www.americanbar.org/groups/intellectual_property_law/publications/lan

dslide/2017-18/march-april/diversifying-intellectual-property-law/

[25] Ibid

[26] https://ec.europa.eu/info/policies/justice-and-fundamental-rights/combatting-discrimination/tackling-discrimination/diversity-management/diversity-charters-eu-country_en – Diversity charters by EU country