The last few years has seen a dramatic increase in public awareness of how differently people are unconsciously and consciously treated because of their race, religion, gender, sexual orientation, and pretty much any aspect which makes a person an ‘other’. This increased awareness has been driven by mass movements such as Black Lives Matter and also greater awareness of policies and actions that have negatively affected minorities, be they the Windrush scandal in the UK, suppression of gay rights in many countries, and mistreatment of minorities during arrests. This has driven a greater desire for a more equitable and inclusive society.
This greater public awareness of D&I issues in society is driving (and sometimes forcing) companies to more embrace Diversity and Inclusion. This pressure comes not only from the public but also from employees within the companies themselves. For obvious reasons, the impacts and pressures of these changes are felt more by larger companies (more employees) and companies that sell goods and services to the public (more affected by public opinion), than by private practice IP firms and particularly smaller IP firms.
While such medium and large sized companies are under more pressure from the force of public opinion and employee pressure, they also have more resources to respond positively to such pressures. There is also an increasing desire within the leadership of companies to take a position on D&I issues. Companies taking a clear stand on D&I matters sends a message not only to the public but also impacts the culture within the company – not only encouraging staff to appreciate and respect diversity and act more inclusively, but also encourages those from a diverse background to feel they are respected and valued within the company. In addition, when employees see their company taking a public stand on D&I issues, employees take more pride in the company they work for (myself included). This obviously also holds for IP professionals working within the company.
It is also much easier for medium and large companies to be aware of the internal culture and hence enact change in the company culture. Such companies typically are large enough to run organisation surveys to assess the culture of the company, and these surveys will now usually include questions on Diversity and Inclusion. Organisation surveys send a positive message that the opinions of employees are valued, but also enables an organisation to be more aware of challenges within the organisation, including on D&I matters, and enact change.
In addition, unlike all but the largest IP Law Firms, such companies have the resources to organise regular D&I (culture) events and to develop regular trainings on ‘doing the right thing’. This includes trainings related to ethics, sexual harassment, and respecting diversity in the workplace. These resources and trainings cover all staff, including in-house patent attorneys and are usually mandatory. As such, they impact the entire organisation and its culture.
The greater emphasis on D&I often also drives change in how and who companies collaborate with. While a significant proportion of medium to large companies, especially in the technology sector will have in-house IP attorneys, they also collaborate with Outside Counsel in some or all aspects of IP – patent drafting, prosecution, opposition, and litigation. While some companies have actively set benchmarks for D&I performance in their criteria for hiring Outside Counsel, others have not. However, even those companies that do not have such benchmarks, cultural fit remains an unwritten criterion for selecting Outside Counsels. Hence, private practice law firms risk losing out on business if they do not follow companies and the public, as they embrace D&I.
Diversity and Inclusivity is just the right thing to do. There have also been enough surveys that show that companies that have a diverse and inclusive culture are often more successful and enduring. There is also a greater desire that companies have a diversity that reflects the society they operate in and have a culture that respects such diversity. However, for legal functions, including IP departments, achieving a representative workforce has greater challenges. One such challenge is faced by both private practice IP law firms and In-House IP departments: a lack of diversity in the pool of candidates applying for IP positions. This is one area where the only solution is encouraging more diversity in the people who look to IP as a career, for example, by having D&I statements on company/private practice home pages and IP job postings, and actively encouraging more diversity in the university graduates that see IP as a career, and in science and technology graduates who aspire to become patent attorneys.
While I work as an in-house patent attorney, the opinions expressed in this article are my own.
