EDI Challenges in Grant-making and Patenting Ecosystems
 

Basam E. Nabulsi
McCarter & English, LLP




Joycette Charles
McCarter & English, LLP




We encounter equity, diversity and inclusion (EDI) challenges in all aspects of our professional lives. To advance EDI objectives, it is important to shine a light on areas where failures to support equity, diversity and inclusion may be impeding our ability to put our best minds to work in attacking society’s problems.  

As a starting point, there is consensus within the innovation ecosystem that the principles of equity, diversity and inclusion are not merely aspirational, but crucial to fostering innovation and advancing societal progress. Numerous studies have established that EDI positively impacts innovation because the perspectives and representation of diverse communities and individuals drive positive outcomes.¹ Yet, biases persist in critical processes fundamental to the innovation ecosystem, posing barriers to achieving true equality and fairness.² Addressing these biases requires deliberate and systemic efforts to create environments where all individuals, regardless of background or identity, have equitable opportunities to contribute and succeed.

I. The Grant-Making Ecosystem
Grant-making is a critical tool for promoting innovation. For example, W. Nicholson Price II finds that grants funded by NIH allow it to support socially valuable innovations that markets might undervalue.³ But biases in grant funding remain an issue that hinders equitable distribution of resources and opportunities.⁴ Despite efforts to promote fairness and inclusivity, systemic biases related to gender, race and geographic location continue to influence the likelihood of receiving funding.⁵ These biases not only perpetuate inequalities but also stifle innovation by excluding diverse perspectives that could drive technological advancements.  

II. The Patent Ecosystem
Patent grant rates are useful in assessing the patent system’s effectiveness, fairness and impact on innovation. Analyzing these rates helps identify areas for improvement and can help to ensure that the patent system supports all inventors equitably.⁶ However, biases in the application review process can perpetuate disparities. 

Gender discrepancies in outcome remain. In her article, “The Impact of Implicit Bias on Female Patent Applicants in an Age of Increasingly Vague Patent Standards,” Jaclyn Alcantara examines the effects of implicit bias on female patent applicants.⁷ Alcantara argues that U.S. Supreme Court decisions, like KSR International Co. v. Teleflex Inc.⁸ and Alice Corp v. CLS Bank International⁹, have moved away from clear, objective standards to more subjective criteria for evaluating patent applications. Increased examiner discretion arguably allows implicit biases to influence patent grant decisions. For instance, Alcantara shows that female inventors face more Office Actions and a 5% lower allowance rate than male inventors.¹⁰ 

Beyond gender-based issues, cultural and language-related biases may negatively impact efforts to protect inventions from certain regions or cultural backgrounds. Gaétan de Rassenfosse et al. provide compelling evidence of systematic biases against foreign patent applicants in major patent offices.¹¹  The authors propose that patent offices and institutions should provide language assistance and support for non-native speakers, ensuring they have equitable access to patenting opportunities. 

III. Conclusion
Achieving equity, diversity and inclusion throughout the innovation ecosystem is not just a matter of compliance or good practice — it is a moral and strategic imperative. By addressing biases through proactive measures, institutions can create more equitable and inclusive environments where innovation thrives and all individuals can contribute their talents and ideas. We all have an important role to play in this work and stand to benefit in countless ways through a full realization of EDI principles in the innovation ecosystem.

¹ See, e.g., Colleen Chien, Redefining Progress and the Case for Diversity in Innovation and Inventing (2022); W. Michael Schuster et. al., An Empirical Study of Gender and Race in Trademark Prosecution, 94 S. Cal. L. Rev. 1407, 1410 (2021); Holly Fechner & Matthew S. Shapanka, Closing Diversity Gaps in Innovation: Gender, Race, and Income Disparities in Patenting and Commercialization of Inventions, 19 TECH. & INNOVATION, 727, 729 (2018).
² W. Michael Schuster et. al., An Empirical Study of Patent Grant Rates As A Function of Race and Gender, 57 Am. Bus. L.J. 281, 290-91 (2020).
³ W. Nicholson Price II, Grants, 34 Berkeley Tech. L.J. 1, 1 (2019).
⁴ Michael A Taffe, Nicholas W Gilpin, Equity, Diversity and Inclusion: Racial inequity in grant funding from the US National Institutes of Health (2021). 
⁵ Elyse Shaw and Halie Marino, Institute for Women’s Policy Research, Tackling the Gender and Racial Patenting Gap to Drive Innovation: Lessons from Women’s Experiences (July 2021).
⁶ Schuster et. al. at 311-12.
⁷ Jaclyn Alcantara, The Impact of Implicit Bias on Female Patent Applicants in an Age of Increasingly Vague Patent Standards, 88 UMKC L. Rev. 161 (2019).
⁸ KSR International Co. v. Teleflex Inc., 550 U.S. 398 (2007)
⁹ Alice Corp. v. CLS Bank International, 573 U.S. 208 (2014)
¹⁰ Alcantara at 161.
¹¹ Gaétan de Rassenfosse et. al., Are Foreigners Treated Equally Under the Trade-Related Aspects of Intellectual Property Rights Agreement?, 62 J.L. & Econ. 663, 668–682 (2019).