Guest Post by Jordana Goodman: Unseen Contributors: Rethinking Attribution in Legal Practices for Equity and Inclusion

Guest Post by Jordana R. Goodman, Assistant Professor at Chico-Kent College of Law

This post is part of a series by the Diversity Pilots Initiative, which advances inclusive innovation through rigorous research. The first blog in the series is here, and resources from the first conference of the initiative are available here.

According to the National Association for Law Placement, female equity partners in law firms comprised about 23% of the total equity partner population in the United States in 2022.  Women made up more than half of all summer associates and have done so since 2018.  Representation among intellectual property lawyers parallels this trend, with women representing about 22% of all equity partners and over 50% of all summer associates in 2019. Although there has been steady progress in hiring women attorneys at junior levels, there have not been similar increases in partner retention in the past thirty years.  NALP called the partner level increases “abysmal progress,” and suggested that one reason for this failure is that “little work has been done to examine and change the exclusionary practices that create inequalities.”

If presence was the only obstacle to creating a more diverse, equitable, and inclusive legal environment, the pipeline of diverse junior associates would have begun to significantly shift the partner demographics at law firms across the country.  However, because the environment within a law firm can be unfriendly to non-Caucasian, non-cisgender male, non-heterosexual lawyers, people who identify as such tend to leave legal practice at higher rates. More must be done to remedy inequities within the day-to-day practices to create an equitable legal environment.

As detailed in my study, Ms. Attribution: How Authorship Credit Contributes to the Gender Gap, allocation of credit on public-facing legal documents is not equitable. When the senior-most legal team member signs documents on behalf of their legal team, they are erasing the names of associates from the record.  This widespread practice, combined with the constant perceived differences in status between male and female colleagues as well as biases related to accents, can lead to negative consequences and unequal attribution for women, people of color, and LGBTQ+ individuals. “Under-attribution of female practitioners falsely implies that women do less work, are more junior, and do not deserve as much credit as their male colleagues” and such practices must change.

Not every attribution decision is a social decision, where a partner has a complete choice to allocate credit to associates within a firm.  Government forms and procedures can prevent equitable attribution of all practitioners.  For example, the United States Patent and Trademark Office (USPTO) requires applicants to submit paperwork accompanying a patent application, but this paperwork does not allow for equitable attribution of everyone who wrote the patent application.

Specifically, the cover sheet of a provisional patent application prominently features five distinct lines dedicated to naming inventors, with an additional prompt allowing for the inclusion of more inventors on a separate sheet if needed. However, there is a stark contrast when it comes to attributing practitioners; there’s merely one designated line for practitioner correspondence and notably, no space provided to credit practitioners responsible for composing the application.  Similarly, the Application Data Sheet (ADS)—a form that accompanies a non-provisional application—initially provides only one line to list a corresponding practitioner. Any additional lines for other practitioners necessitate manual addition, highlighting a consistent limitation in acknowledging multiple contributors in the practitioner field.

With the exception of solo practitioner-composed applications, most patent applications are written as a collaboration, with both junior and senior practitioners participating in the written exercise.  However, due to prevailing norms within law firms, where gender representation disparities are especially pronounced at senior partnership levels, and the social dynamics between junior and senior practitioners, paperwork is more frequently signed by male practitioners than their female counterparts.  Not only are women’s names disproportionately concealed from the public record, but also the credit gap increases as attorneys continue to practice.  As Figure 1 below shows, of the highly-credited patent practitioners identified from 2016-2020, over 90% were male. 

The importance of this credit – signatures at the bottom of paperwork accompanying patent applications – should not be underestimated.  Credit serves as a reward and incentive for future work, as well as a humanizing function – linking work product “to the reality of human endeavor.”  Credit in this context can influence client acquisition, a sense of belonging in the firm, career advancement, and achieving notoriety. Therefore, the USPTO should consider amending their paperwork to ensure teams of practitioners can all receive credit for their contributions to the patent application.

First, the USPTO could add more signature lines on all patent application paperwork.  In addition to corresponding practitioners, practitioners who composed a substantial amount of the patent application could also receive public attribution. The USPTO could expand the forms, such that associates who have not passed the patent bar could still receive credit for their work.  Furthermore, the USPTO could compose a bulletin for firms, explaining the importance of credit for associates and showing ways that multiple practitioners could receive credit on office action responses, issue fee sheets, and other documentation.  Finally, the USPTO could track attribution to determine if teams are taking advantage of the increased attribution opportunities and if the opportunities increase female attribution and retention.   

Three main takeaways:

Persistent Gender Disparities: Despite steady progress in hiring women attorneys at junior levels and women constituting over 50% of summer associates since 2018, there have not been similar increases in partner retention in the past thirty years.  Women only hold around 23% of equity partner positions in U.S. law firms, highlighting unaddressed, systemic inequalities and exclusionary practices.Inequitable Attribution in Legal Documents: The current practice of senior-most legal team members signing documents conceals the contributions of associates, leading to unequal attribution. This under-attribution particularly affects female practitioners, people of color, and LGBTQ+ individuals, implying they do less work and do not deserve as much credit as their male counterparts. This iniquity in credit allocation on public-facing legal documents serves to reinforce gender gaps and hinders career advancement, client acquisition, and a sense of belonging within the firm.Proposed Amendments to USPTO Procedures: To address inequity, USPTO should revise procedures and forms to facilitate equitable attribution for all patent application contributors and to stress the importance of credit, assessing the impact on attribution and retention dynamics, especially for women.

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