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Black Women Lawyers Still Sparsely Seen at Federal Circuit

June 14, 2022, 9:35 AM

Brittany Amadi, a partner at Wilmer Cutler Pickering Hale and Dorr LLP, has never had a case at the Federal Circuit where the attorney arguing on the other side was Black.

Amadi has been counsel in over two dozen cases at the appeals court. In the year she clerked for Judge Timothy B. Dyk, she said she doesn’t remember seeing one Black attorney argue before the court.

“Even just for women in general, it’s pretty rare,” Amadi said, “except for where someone was arguing on behalf of the government.”

Fewer than 20% of attorneys arguing in front of the US Court of Appeals for the Federal Circuit in 2021 were women, according to Bloomberg Law data. Women appeared on behalf of law firms 13.6% of the time and represented the government 47% of the time from May 2020 through December 2021. Only a handful were women of color.

Judges in every corner of patent law have been crying out for more diversity among arguing counsel, particularly from law firms. As some firms take steps to expand the numbers of underrepresented groups in the bar, progress has been slow to reach the appellate court.

For Judge Todd M. Hughes, it’s frustrating to see such an imbalance in the courtroom.

“It just drives me nuts when you see no female attorneys arguing patent cases from the private sector,” Hughes said, “or very, very few.”

Moving the Needle

Law firms have been reassessing how to recruit diverse candidates, creating programs that target the pipeline problem of a lack of women and minorities having the STEM degrees required to register as an attorney with the US Patent and Trademark Office.

Harrity & Harrity LP—after conducting a diversity and inclusion study that found that there are more patent attorneys and agents named “Michael” than there are racially diverse women in those roles in the US—launched a program to register more Black women as patent practitioners.

The initiative, called Patent Pathways, starts this summer. Harrity & Harrity will help women who complete the program find law firm jobs afterward. The inaugural program’s 20 participants could “move the needle quickly,” said Elaine Spector, a Harrity partner leading Patent Pathways.

“We want to make sure that innovation is expanded across all of our populations,” Spector said. “Women and racially diverse inventors are inventing or showing up on patents at a lower rate, and there is that correlation, to make sure that they can go to attorneys that represent them.”

While Federal Circuit judges have made strides to keep an almost even split between women and men clerks, they struggle with hiring clerks from other underrepresented groups, Hughes said. Hughes looks to law schools he wouldn’t traditionally recruit from and expands his criteria to find Latino and Black candidates, he said.

The recruitment problem, though, is rooted deeper than law schools, Hughes said. Patent law has been a historically White- and male-heavy practice area, in part because of the patent bar’s science requirements and the related lack of diversity in science fields.

“We struggle with African American and Latino clerks. That’s because, I think, we’re so science-oriented,” Hughes said. “Who knows how far that probably goes down? Does it go down all the way to high school or college? There’s a problem there.”

Beyond STEM Degrees

Kali Murray, a law professor at Marquette University, said firms and law students also need to rethink who can practice patent law, particularly at the Federal Circuit. While practicing before the patent office requires a science or technical degree, litigating at the Federal Circuit and other types of patent law outside of patent prosecution don’t.

Four of the Federal Circuit’s five women judges have technical degrees and patent backgrounds, while only two of the seven active male judges have those qualifications. Judge Tiffany P. Cunningham, the first Black woman on the appeals court, has a chemical engineering degree.

“Given that the Federal Circuit now has a set of individuals who don’t come out of a traditional patent practice, I think it’s really important to have a lot of different eyes on the brief,” Murray said, “besides the sort of people who have that traditional patent prosecution background.”

Part of the issue is a lack of mentors available to show Black women that they don’t necessarily need the technical qualifications that are required for patent prosecution to practice patent litigation, said Jeanne M. Gills, a Foley & Lardner LLP partner. Getting more Black women into the space can help show others that patent law is a viable option—or an option at all—she said.

“There’s just not enough of us to have those kinds of conversations with people at earlier stages in their careers,” Gills said. “Representation matters, and many of us want to see people who look like us, and who we feel comfortable asking questions.”

Podcast: Black Lawyers Speak: Stories of the Past, Hopes for the Future

Retention Problem

As district courts and the Patent Trial and Appeal Board create incentives for law firms to send younger, more diverse attorneys in for oral argument, appellate work is harder to break into, Murray said. The totemic structure of law firms, which often view appeals as “elite,” can often lead to the few women of color in patent law being shut out, she said.

“If you look at who is not only going to the Supreme Court, but also to federal circuits, including the Federal Circuit Court, they’re overwhelmingly white, and they’re usually men,” Murray said. “There’s not that many examples and role models for women of color—even in law schools—around patent litigation and patent litigators.”

At the Federal Circuit, Hughes said he’s noticed that the more diverse clerks hired by judges haven’t been funneling back into the courtroom as advocates.

Law firms frequently recruit Federal Circuit clerks for their experience, Hughes said. The problem must be retention, he added. If law firms aren’t retaining their more diverse hires, then the attorneys can’t work their way up to argue appeals. The judge noted, though, that women and members of other underrepresented groups hold high government positions that would be equivalent to a law firm partner’s status.

“Why do they manage to, you know, recruit, and retain sufficient numbers of women when the private firms don’t?” Hughes asked. “It’s not that they’re not hiring them in sufficient numbers—that’s a good enough for the explanation of why you are not sending the junior or mid-level associate. The real question is, why don’t you have any partners that are women?”

Hughes had hoped it was a generational issue and expected that progress would be slow. But in his nine years on the court, he said he hasn’t seen many women clerks show up to represent clients for private firms.

Without more representation, it’s difficult for women of color to see how they can carve out a path to appellate litigation, WilmerHale’s Amadi said, adding that it’s “discouraging for the next generation.”

“If you’re only seeing a particular category of person representing clients before the Federal Circuit, or before any court of appeals, it can be discouraging and make you think you can’t get to that level,” Amadi said. “Having more diversity, I think, will hopefully encourage others to go into the appellate space.”

With assistance from Perry Cooper

To contact the reporter on this story: Samantha Handler in Washington at shandler@bloombergindustry.com

To contact the editors responsible for this story: Adam M. Taylor at ataylor@bloombergindustry.com; Tonia Moore at tmoore@bloombergindustry.com