A bipartisan group of senators, including the chairman and senior minority member of the Intellectual Property Subcommittee, has proposed legislation that would allow the U.S. Patent and Trademark Office to collect demographic information on patent applicants. The bill, known as the Inventor Diversity for Economic Advancement Act of 2021 or more simply the “IDEA Act,” is a response to increasing public concern about the lack of diversity of inventors named in patents and the inability of the USPTO data to reliably assess the situation provide. The “idea” corresponds to a primary business maxim: “If you can’t measure it, you can’t improve it.” Like many other government programs, it would authorize the USPTO to collect such data on a voluntary basis and ask the USPTO to provide it Report data.
In particular, the IDEA Act provides:
“The director will ensure the collection of demographic information, including gender, race, military, or veteran status, as well as any other demographic category the director deems appropriate, in relation to any inventor listed with a patent application that is voluntarily filed by can become this inventor. “
As explained in Law360, the bill was revived after a similar attempt failed in its previous term. The previous version of the bill contained provisions for the collection of data on sexual orientation, ethnicity, age, national origin, level of education and disability, and at least some of these categories gave cause for concern. The current version only requires the entry of gender, race and military or veteran status.
The IDEA Act also provides that such information provided by an applicant be kept “confidential and separate from the patent application” – a provision that would help avoid implicit distortions during the patent examination process.
Ironically, current assessments of the gender diversity of inventors named in patents are based on statistical inferences from the inventor’s first name – information readily available to examiners. In addition, a 2018 study by Kyle Jensen, Balazs Kovacs, and Olav Sorenson published in Nature Biotechnology reported that some results are biased in the prosecution of some patents against inventors with female names. It is well known that gender-blind assessments help remove gender-specific biases, as demonstrated, for example, by gender-blind auditions for female musicians. The same should apply to those named as inventors in a patent application, and designating the inventor names “confidential and separate from the patent application” would be in line with the proposed protection of IDEA law.
In addition to the USPTO’s power to collect demographic data, the IDEA Act would also require the USPTO to analyze and report on the data collected. In particular, the USPTO must prepare an annual report on the demographic diversity of patent applications and granted patents. In this report, the total number of patent applications and the total number of patents granted would be given as follows:
- Gender of each named inventor;
- Race of each named inventor;
- Military or veteran status of any named inventor;
- Country of residence; and
- For US inventors, the state of residence of each named inventor.
The IDEA Act contains relatively extensive provisions on access to disclosed information. The USPTO would need to establish procedures to ensure the confidentiality of the information. The information would be exempt from disclosure under Section 552 (b) (3) of the Freedom of Information Act and reports could not disclose personal information.
Industry groups have advocated the IDEA bill, including the statement by the President of the Biotechnology Innovation Organization (BIO). The Intellectual Property Owners Association (IPO) sent letters to the House and Senate expressing support for the bill.
Copyright 2021 Squire Patton Boggs