Blogger Ron Coleman recently (July 14, 2017) started his post with a statement that might be taken as a challenge, or not: "I have a dream: we one day will live in a nation where panelists will not be judged by their gender but by the content of their presentation." His point, or one of them, was that he had a hard time believing that women were at any kind of disadvantage in the year 2017 in the practice of trademark and copyright law.
By many measures, Mr. Coleman is correct: women are well represented in U.S. trademark law and trademark institutions and leadership. This level of representation is not new in the U.S.
But the implication that women lawyers in the trademark (and copyright) fields are dominant and so doing just fine, misses the mark in a number of important respects, each of which impacts women in the law on an ongoing, institutional basis, including women who practice in the area of intellectual property law.
Put the matter in historical perspective. There have been women practitioners prominent in the field of trademark law for more than for forty years. Pioneering women in the field include Dolores Hanna, Marie Driscoll, and Sigrun Kane. But the field of patent law can claim few equivalent women pioneers. And women have not been well represented in the various STEM disciplines, with a few notable exceptions (biotechnology for one), and these disciplines provide the background for most patent practitioners.
The women who initially enjoyed success in the trademark and copyright practice were either in-house or in boutique practices. That is, they were to some extent immune from the stresses of practice in "Big Law" firms with their focus on billable hours, business generation, and the ability to be one of the guys. It did no harm that few of the bigger firms had any significant intellectual property law practice outside of litigation.
Move forward 40 years. Women in intellectual property have had role models. They have had mentors, some of whom even were more experienced women engaged in the practice.
So what is the issue?
Set aside the relative lack of women in senior positions in patent law. Women know they can attend a patent-focused program of almost any local intellectual property law association and see a sea of white male faces. Women in the intellectual property field also know there is a tendency on the part of patent lawyers, and particularly male patent lawyers, to think that trademark and copyright law are not complicated fields, that the material is somehow so simple that they can dabble with it, handle any of it, and it is suitable for their women colleagues. Art Seidel's intellectual property boutique in Philadelphia, founded in 1952, was the first in that city to treat trademark law as a separate area of expertise and to have non-patent attorneys dedicated to the trademark and copyright practice. The first such attorney was Alan Greenberg, later in-house counsel at J.C. Penney and The Coca-Cola Company. Most of Alan's successors in the role were women.
What follows from this situation? Women in the boutique practices who focus on trademark and copyright law have often been relegated to secondary roles and shut off from the decision-making for the firms as a whole, even after achieving partnership. Women in the larger, general practice firms confront the same issues as their colleagues in other practice areas: difficulty in securing access to client pitches (except where and to the extent corporations mandate diversity from their outside counsel); balancing the need to be properly assertive against the perception of being aggressive and uncooperative; determining how and when to make the ask for business from potential clients and referral sources.
So what is the way forward? In law firms, women in intellectual property as in other fields will lag behind their male counterparts in compensation and in promotions so long as they lag behind in finding and minding clients who bring profitable business to the enterprise. The statistics are depressing. For instance, according to lawyerist.com (https://lawyerist.com/state-women-law/), "Despite recruiting more women straight out of law school [averaging 60% of recruits due to increased numbers of women enrolling in and graduating from law schools], 80% of the lawyers are male by the senior partner level. The proportion of women drops significantly from 45% of associate positions at law firms being held by female associates, to women only comprising approximately 20% of partners, 18% of equity partners, and a mere 4% of managing partners at the top 200 largest law firms in the United States." In addition, female equity partners in law firms still typically make 80% of what their male counterparts earn. There has simply been too little progress in the last twenty years if you look at the available numbers.
If the traditional avenues, such as, for example, being brought into matters by a partner who sees the younger attorney as a younger version of himself, are not sufficient, then there must be recourse to other avenues. And there are other avenues: networking with women in other geographic areas (local counsel and conflict work); networking with women in other practice areas (through affinity bars, and women's initiatives of local and state bars); developing and promoting some particular area of expertise in the field (what is going to be the next best thing and what are the intellectual property implications, such as surveys in 1980 or e-commerce in 1998 or 3D printing in 2013 or virtual reality in some future year).
There are other avenues. Big law firms do not provide the only platform for an intellectual property practice, and intellectual property law boutiques are not the only alternative. More firms opening their doors are women-owned firms. There are different models for compensation from those employed by most big law firms, and different relationships within those firms. "We have always done it this way" is not a sufficient answer to the questions raised by women who grow dissatisfied with their career trajectory, even as they enjoy the practice of intellectual property law.
To some extent, we are, most of us, a little bit trapped by experience. Women have been slower than they might to avoid stereotypical gendered language. In a courtroom, a (male) federal judge once admonished two women lawyers to stop referring to the target market for the product in issue as the doctor, "he." The choice of language has consequences, including the picture presented to the opposing counsel, the parties, and the finder of fact.
To some extent, we are, most of us, a little bit trapped by expectations. Many women still see themselves getting hired as an associate, working hard, doing good work, becoming a partner, taking on more responsibility, doing more good work, bringing in business, doing more good work, mentoring others, doing more good work, retiring. Lean in or else? Fit other things in between, work around, or decide that is not the life you want and step off the track. This is not a binary or a once-and-for-all-time decision for women (or men). A wiser woman says that a career path is not a ladder, it is a jungle gym; and the lesson is that there are paths that are not straight, and options that may or may not work out well. What we cannot be is afraid to try, and afraid to make a career mistake, and afraid to step back, and breathe deep, and change course.