In a comment for UMKC Law Review, Shook Associate Jaclyn Alcantara explores how implicit bias can affect female patent applicants as U.S. patentability standards have become increasingly vague. Alcantara details U.S. Supreme Court decisions “that have resulted in vague, less objective patent examination standards,” then she turns to implicit bias and its potential effects.
“How examiner discretion and implicit biases affect the patent application process can be subtle and multi-faceted, similar to the effects of implicit bias on prosecutorial discretion,” Alcantara notes. Studies seem to show that female patent applicants may receive a lower patent allowance rate, she notes, and women “also faced more office actions rejecting or objecting to their patent applications before finally negotiating an allowance,” resulting in additional attorney’s fees and a likely narrowed claim scope.
“Due to the subtle nature of implicit bias, patent applicants may not always notice when these biases are impacting examination of their patent applications. Yet each additional obstacle faced by a patent applicant may consciously or unconsciously affect an inventor’s future patent filings,” Alcantara reasons. “Although it is impossible to document how often something does not happen, it seems likely that a person facing more obstacles in obtaining a first patent would generally be less enthusiastic about pursuing future patents than a person facing fewer obstacles."
“The patent examination process is intricate and complex. Eliminating implicit bias at every stage of this process is impossible. However, if increasing female participation in patenting is the goal, a commitment to ensuring that women are treated fairly once they do choose to participate in the U.S. patent system is important,” Alcantara concludes. “Developing stronger, clearer evidentiary requirements for examiners making highly subjective patent determinations is an important step for tempering the effects of such biases, particularly in the areas of obviousness and patent eligible subject matter. Gender-blind examination studies may also offer additional insight into this topic, spurring innovative solutions for how to reduce the effects of implicit bias in patent examination.”