1 Recruitment and Diversity in the Patent and Trade Mark Professions Background The Legal Services Act requires legal regulators to act so far as is reasonably practical in a way which promotes eight regulatory objectives. These objectives are: Protecting and promoting the public interest; Supporting the principles of the rule of law; Improving access to justice; Protecting and promoting the interests of consumers; Encouraging an independent, strong, diverse and effective legal profession; Increasing public understanding of the citizen s legal rights and duties; and Promoting and maintaining adherence by authorised persons to the professional principles. In relation to the encouragement of a diverse legal profession, the Legal Services Board has stated: A diverse legal profession is one that reflects and is representative of the full spectrum of the population it serves so as to harness the broadest possible range of talent in the meeting of the regulatory objectives. We consider that for public interest reasons and good business sense as much as for meeting this regulatory objective that the legal industry should reflect the population it serves. At entry, retention and progression we will support approved regulators in ensuring that there are no artificial barriers or discriminatory hurdles to legal careers caused by regulation. We will promote equality and diversity through our regulatory framework and we expect approved regulators to do the same. 1 With that in mind, the LSB has issued statutory guidance 2 which requires IPReg and the other legal services regulators to gather a comprehensive evidence base about the regulated community. To that end IPReg has conducted a survey of registered attorneys as part of the move to on-line management of the Patent Attorney and Trade Mark Attorney Registers. In addition, as required by the LSB, IPReg will in the future arrange for a broader survey to be conducted encompassing not only qualified attorneys but the entire regulated community including employees of regulated entities. The results of these surveys will provide a baseline for gauging the diversity of the patent and trade mark professions. 1 Legal Services Board: The regulatory objectives, paragraph 43 2 Legal Services Board: Increasing diversity and social mobility in the legal work force: transparency and evidence
2 Reviewing the Backgrounds of Trainee Patent & Trade Mark Attorneys If IPReg is to encourage diversity within the patent and trade mark professions, it is essential that IPReg understands the recruitment practices in these professions, not least since recruitment in patents and trademarks differs in certain ways from recruitment in other regulated professions such as those of barristers and solicitors. The patent and trade mark professions are small. Most years see only about 120 new trainee patent attorneys joining the profession. The number of trainee trade mark attorneys is far lower with around 30 or so joining the profession each year. These figures are far smaller than the level of recruitment amongst the larger legal professions. The relatively low numbers of recruits, however, makes it possible to review their backgrounds in detail. Virtually all trainee patent attorneys join CIPA as student members. The CIPA membership list identifies the names of all student members together with their qualifications. Similarly, most trainee trade mark attorneys are student members of ITMA and are included in the ITMA membership list along with details of the dates on which they joined. Although the ITMA membership list does not include the comprehensive qualification data included in the CIPA list, the small numbers of individuals involved means that it is practical to use the names and associated firm data to check an individual s qualifications on firm websites or alternatively on social media sites such as LinkedIn. The results of the review of students identified in the 2012 CIPA and ITMA membership lists as joining the patent and trade mark professions between 2010 and 2012 are discussed below. Additionally, a similar review of the genders and qualifications of patent and trade mark attorneys qualifying between 1998 and 2000 was undertaken to provide comparative data to determine how recruitment practices have varied over time. The results of the review are set out below. Gender Balance The following graph illustrates the gender balance of the samples reviewed and sets the proportions of male and female patent and trade mark attorneys in context with equivalent data for barristers and solicitors and the historic data for attorneys qualifying between 1998 and 2000.
3 Percentage Male/Female In the case of trainee patent attorneys recruited between 2010 and 2012, as identified in the CIPA membership list, 130 (60.5%) were male and 85 (39.5%) were female. Corresponding numbers for trainee trade mark attorneys in the ITMA membership list were 15 (25.4%) male and 44 (74.6%) female. Latest figures from the BSB and SRA indicate that 57% of pupil barristers and 41% of trainee solicitors are male. For patent attorneys, identified in the CIPA membership list as qualifying between 1998 and 2000, 113 (81.3%) were male and 26 (18.7%) were female. For trade mark attorneys identified as qualifying between 1998 and 2000 from the trade mark attorney register 17 (43.5%) were male and 22 (56.5%) were female. The figures illustrate that the gender balance of new recruits to the patent profession is not dissimilar to that of the bar and that women recruits form the majority in the solicitor profession and a clear majority amongst trainee trade mark attorneys. The figures also show that the gender balance amongst recruits has changed over the last 15 or so years. Although the majority of trainee patent attorneys are still male, the balance between men and women has changed considerably. Similarly, although even in 1995 women formed the majority of recruits to the trade mark profession, that majority is far higher for recruits between 2010 and Degree subject One reason for the relatively high proportion of male patent trainees is the requirement for trainees to have a relevant science degree. It is well known that science and engineering graduates are disproportionately male. The latest figures from the Higher Education Statistics Agency 3 state that 83% of engineering students are male as are 57.6% of physical sciences students. In contrast, the majority of law students (59.2%) and students studying biological sciences (79.2%) are female. Using the CIPA membership data it is possible to break down the data for trainee and qualified patent attorneys in more detail against the subjects studied for their first degree. The results are indicated below. The other category in the following figures indicates that an individual s degree 3 Gender Gap at Universities
4 subject was either unknown, such as where the CIPA membership list omitted data or where the degree subject could not be identified (for example, where a degree was described as natural sciences and no further information was available), or where the degree was one of a small number, such as a mathematics or computer science degrees, which do not fall within any of the other general categories. Number of male and female trainee patent attorneys by degree subject Number of male and female patent attorneys qualifying by degree subject The above figures illustrate that in part the change in gender balance in recruitment has arisen because of a reduction in the proportion of trainees recruited with engineering degrees (33% of attorneys as opposed to 18% of trainees in ) and a corresponding increase in the number of students recruited from the bio-sciences (14% for attorneys, 24% for trainees). Overall, gender balance amongst trainees in Engineering and the Physical Sciences (i.e. Chemistry and Physics) is broadly at the level that would be expected given the available pool of graduates. In Engineering 78.9% of trainee patent attorneys are male compared with 83% of the Engineering undergraduate population. In the case of the physical sciences 62.2% of trainee patent attorneys
5 are male compared with 57.6% of the undergraduate population. Given the small sample sizes for trainee patent attorney numbers, 4 these figures are basically equivalent. The one outlier is the bio-sciences. As noted above 79.2% of undergraduate students studying biosciences are female. However, between 2010 and 2012 out of 51 trainee attorneys who could be identified as have a bio-science degree only 23 (45.1%) were female. Put another way, if the proportion of female trainees mirrored that of the undergraduate population an additional 17 of the 51 trainees would be women. There are a number of possible explanations for this discrepancy. Firstly, it is quite possible that some of the missing students are to be found amongst Cambridge natural science graduates classified in the other category. However, since there are only 8 female students who were classified that way, this cannot be a complete explanation for the shortfall. A second possibility lies in the HESA figures themselves. The numbers of students recorded as reading bio-sciences are much greater than the corresponding numbers for the physical sciences (84,060 vs 26,125), however, the HSEA bio-sciences category includes significant numbers of students reading Psychology (27,120) and Sport Science (15,950) neither of which normally provide the scientific basis for work as a patent attorney. 5 If a higher proportion of female undergraduates read these subjects rather than the other bio-sciences as a whole then this would explain part of the discrepancy. Doctorates A further possibility may be due to the prevalence of doctoral students who are recruited into the profession. This is a growing trend. In the sample of patent attorneys who qualified between 1998 and 2000, 33 out of 139 (23.7%) have doctorates. This proportion increases to 76 out of 215 (35.3%) in the case of the most recent trainees. As would be expected the numbers of doctoral students vary depending on discipline. More than half of the chemists (51.9%) and almost half of the bio-scientists (47.1%) recruited between 2010 and 2012 have doctorates. The rates are lower amongst physicists (30.4%) and engineers (21.1%). A similar pattern is to be found amongst the qualified attorneys. However, in all cases the proportions of doctorates has increased from 36.8% and 36.0% in the case of chemists and bioscientists and 22.8% and 6.5% for physicists and engineers respectively. The increasing numbers of 4 38 trainee patent attorneys with engineering degrees and 98 trainee patent attorneys with physical science degrees 5 No trainee patent attorneys in the sample were identified as having a Psychology degree or a degree in Sport Science.
6 post-graduates being recruited into the profession therefore applies across the board and is not just an artefact which arises due to changing patterns of demand for students with different technical backgrounds and the prevalence of doctorates across different subjects. Trade mark attorneys Unlike patent attorneys, there is no requirement for trade mark attorneys to have studied particular subjects at degree level before entering the profession. 6 However as the following graphs illustrate, it is increasingly the case that trainee trade mark attorneys have a law degree before joining. Degree subjects studied by trainee trade mark attorneys in and trade mark attorneys qualifying in trainees attorneys As can be seen from the above, even 15 years ago almost half (43.5%) of trainee trade mark attorneys recruited to the profession joined with a law degree. Since then that proportion has increased further to 68.8%. If recruits having a graduate diploma in law 7 are factored in then more than three-quarters of trainee trade mark attorneys have an undergraduate level legal qualification before entering the profession. The remaining students have studied a wide variety of degrees including Biochemistry, Chemistry, Classics, Computer Science, Economics, English, French, German, History, Irish Studies, Multimedia Technology, Music and Psychology. A similar pattern was to be found amongst the qualified attorneys where non-law graduates had studied subjects including History, Engineering, Philosophy, Business, Maths, English, and Geography. 6 Strictly speaking the IPReg regulations only require trainee patent attorneys and trainee trade mark attorneys to be graduates. De facto the requirement to have studied a science degree arises from the qualifications necessary to become a European patent attorney. Every patent attorney in the qualifier group with the exception of 2 attorneys based outside of Europe is shown in the CIPA membership list as having qualified as both a UK and a European patent attorney. 7 The one year conversion course for non-law graduates who wish to enter the legal profession.
7 Of course one factor in the prevalence of law students amongst trade mark attorneys is the fact that some solicitors choose to cross-qualify as trade mark attorneys. In the sample, 10 out of the 59 students (16.9%) could be identified as being solicitors. This is a similar proportion to the 7 out of 39 (17.9%) of solicitors amongst the qualifiers. A small but noticeable trend amongst the legally qualified students is the number of trainees who complete the Legal Practice Course (LPC) or the Bar Professional Training Course (BPTC) before joining the trade mark profession. Amongst the qualified attorneys, 3 out of 39 attorneys (7.6%) could be identified as having completed the LPC or BPTC but not having gone on to qualify or practice as solicitors or barristers. This number increased to 9 out of 59 (15.3%) of the students from Given that it can be reasonably assumed that anyone who applies for the LPC or BPTC would be intending to practice as a solicitor or barrister respectively, the presence of individuals holding such qualifications would appear to suggest that the trade mark profession is succeeding in marketing itself as an alternative career to aspiring barristers and solicitors. Universities In addition to identifying degree subject, it is also possible to identify the universities from which the professions recruit their trainees. The following graph illustrates the most common universities from which patent attorney trainees received their first degree and the numbers recruited from each university.
8 Undergraduate universities attended by trainee patent attorneys in and patent attorneys qualifying in Other UK universities identified as providing recruits to the profession include Aston, Bradford, Coventry, Exeter, Glamorgan, Herriot Watt, Loughborough, Newcastle, Nottingham Trent, Plymouth, Queen Mary, Reading, Salford, Sheffield Hallam, Sussex, the University of East London, Wales and Wolverhampton. In addition 6 of the qualifiers and 21 out of the students obtained their first degree abroad. The most common foreign countries represented were China and Ireland. 8 For the purposes of assessing social mobility, the Sutton Trust has identified the 30 most selective universities in Scotland, England and Wales with over 500 undergraduate entrants each year, where it was estimated that less than 10% of places are attainable to pupils with 200 UCAS tariff 8 Recruitment of students with a first degree from China is a recent phenomenon with none of the qualifiers from having a Chinese undergraduate degree. The numbers of attorneys and students from Ireland can to a certain extent be explained by Irish patent attorneys who join CIPA and obtain the UK qualification in addition to an Irish qualification.
9 points (equivalent to two D grades and a C grade at A-level) or less. These universities comprise: Bath, Birmingham, Bristol, Cambridge, Cardiff, Durham, Edinburgh, Exeter, Glasgow, Imperial College, King s College London, Lancaster, Leeds Leicester, Liverpool, LSE, Manchester, Newcastle, Nottingham, Oxford, Reading, Royal Holloway, Sheffield, Southampton, St Andrews, Strathclyde, Surrey, UCL, Warwick, and York. These same universities also emerge as the 30 most selective according to the latest Times University Guide. For science and engineering subjects such as those required for entry into the patent profession, most of these universities require at least three A grades or two A grades and a B grade and many of them require candidate to have A grades or A*s. The following graphs illustrate the breakdown of recruits and qualifiers broken down into 4 categories: Oxbridge, Sutton 30 universities (excluding Oxbridge), other universities and foreign universities trainees attorneys Undergraduate universities attended by trainee patent attorneys in and patent attorneys qualifying in As can be seen from the above, only a relatively small proportion of patent attorneys are recruited from universities other than those identified as highly selective by the Sutton Trust. The chart above also illustrates that with the exception of increased recruitment of students with a first degree from abroad, patterns of recruitment have changed very little over the last 15 years. Excluding students with foreign undergraduate degrees, amongst the students 31.3% have undergraduate degrees from Oxford or Cambridge, compared with 38.3% amongst the qualifiers. The proportions of recruits attending UK universities identified as highly selective by the Sutton Trust, including Oxford and Cambridge, was 92.3% amongst the students and 94.1% in the case of the qualifiers. These figures are not dissimilar to the percentages to be found amongst barristers and city solicitors. The BSB Pupillage Statistics 9 monitor the educational backgrounds of pupil barristers. In 2010/11, 155 (34.9%) of pupils attended Oxford or Cambridge. A further 123 (27.7%) attended another Russell Group University which with the exception of Queen Mary, University of London is 9 https://www.barstandardsboard.org.uk/media-centre/research-and-statistics/statistics/pupillagestatistics/
10 a subset of the Sutton 30 Group. 10 Of the remaining pupils 122 (27.4%) attended other UK universities and no data was available on the remaining 44 pupils (10%) For solicitors overall, 16.4% of solicitors attended Oxbridge, with a further 61.9% of trainee solicitors attending a Russell Group university. 11 However, Oxbridge graduates accounted for a greater proportion of trainees at London firms with around a quarter of trainee solicitors 12 in London being Oxbridge graduates rising to 38% in the case of trainee solicitors at magic circle firms. 13 The top 10 most frequently attended universities for all three professions were as follows: Patent Attorneys 14 Solicitors 15 Barristers 16 Oxford Oxford* Oxford* Cambridge Cambridge* Cambridge* Bristol Durham* Bristol* Imperial Bristol* Durham* Bath UCL Cardiff* Nottingham Nottingham* Leeds* Southampton King s King s Birmingham Manchester* UCL Durham Warwick* Sheffield* Manchester LSE Birmingham* *Universities also appearing in the top 20 most frequent universities in the patent attorney list. UniversiKes not featuring in the top 20 of the barrister and solicitor lists. 17 Clearly the lists have considerable overlap, with Oxford, Cambridge, Bristol and Durham occupying the top four positions in the barristers and solicitors lists and positions 1, 2, 3 and 9 in the patent attorney list. The absence of Bath and Imperial from top 20 in the barristers or solicitors lists is largely explained by those universities science and engineering focus and in the case of Bath, its relatively small size. 10 Non Russell Group Universities in the Sutton 30 are Bath, Lancaster, Leicester, Reading and Royal Holloway. 11 Chambers Student Survey 12 Ibid. 13 Legal Week: Oxbridge graduates make 38% of all Magic Circle Trainees, 24 March Cumulative frequency from both the trainees and the qualifiers 15 From the Chambers student survey 16 From the 2012 Bar Council Bar Barometer 17 Bath and Imperial appear as numbers 30 and 32 in the solicitor s list. The bar list only identifies the top 20 most frequently attended universities.
11 The spread of university backgrounds of patent attorneys may be contrasted with those of trade mark attorneys as is illustrated in the following figures. Undergraduate universities attended by trainee trade mark attorneys in and trade mark attorneys qualifying in trainees attorneys As can be seen from the above, trainee trade mark attorneys are recruited from a wider variety of universities than trainee patent attorneys with 36.7% of current UK educated trainees and 41.2% of UK educated qualifiers being recruited from outside of the Sutton 30 group. As the figures demonstrate, patterns of recruitment have changed little between the two groups under review. Although, a greater percentage of the qualifiers, were educated at Oxbridge, (15.7% compared with 4.8% in the group), little reliance can be place on this figure due to the relatively low numbers involved and the incomplete nature of the data set, in particular the data set for qualifiers. The frequency of universities attended by at least two trainees or attorneys in the sample populations are illustrated in the following chart.
12 Undergraduate universities attended by trainee trade mark attorneys in and trade mark attorneys qualifying in Other universities which attorneys or trainees attended included: Brunel, Buckingham, Cardiff, City, De Montfort, Dundee, Durham, Edinburgh, Exeter, Glamorgan, Glasgow, Keele, ICL, Leeds, LSE, Manchester, Nottingham, Oxford Brookes, Paisley, Reading, Sheffield, Southampton, Surrey, UAE, UCL and Warwick. Conclusions and policy implications The following conclusions can be drawn from the above analysis. Female recruitment in the trade mark profession has long been high. Whereas 15 years ago genders were relatively closely balanced, recruitment today is overwhelming female. There has been a clear trend toward the recruitment of trainee trade mark attorneys holding law degrees. Whereas 15 years ago roughly half of trainee trade mark attorneys were law graduates or had studied for the GDL more than three-quarters of trainees do today. Increasing numbers of trainees are joining the trade mark profession having completed the BPTC or LPC. Entry into the patent profession amongst UK graduates is almost entirely from highly selective universities. Patterns of recruitment are similar to those of other elite professions. Recruits to the trade mark profession come from a wider variety of backgrounds. The numbers of trainee patent attorneys with doctorates has increased from around a quarter 15 years ago to over a third of current recruits. This increase has been across the
13 board for all disciplines but is particularly prevalent in the case of chemistry and the biosciences. The gender balance amongst trainee patent attorneys largely reflects the gender balance of science undergraduates. An exception is in the bio-sciences where less than half of trainee patent attorneys with a bio-science background are female despite almost four fifths of bio-science undergraduates being women. Recruitment of patent attorneys from highly selective universities is entirely understandable given the nature of the job. In order to be considered for a trainee patent attorney position it is essential to have a university level science education. Although Russell Group Universities account for only 11% of students in higher education, almost 30% of STEM graduates qualify at Russell Group Universities. 18 These figures rise to 74% and 80% in the case of engineering students studying professionally accredited engineering courses 19 and doctoral students in clinical medicine, pharmacy and pharmacology, chemistry and engineering. 20 However, the relatively narrow recruitment base adversely impacts ethnic and social diversity. 22.2% of students studying at Russell Group universities come from a professional background compared with 12.2% of the student population and 7.8% of the population as a whole. 21 Only 5.2% of students attending Russell Group universities come from a semi-skilled or unskilled background compared with 8.8% of students in higher education and 17.0% of the population as a whole. 22 Independent school pupils are more than twice as likely as pupils in comprehensive schools to attend highly selective universities. 23 Black, Pakistani, Bangladeshi and Indian students are all under-represented amongst Russell Group universities 24 and more generally there is underrepresentation amongst ethnic minority students in key STEM subject such as physics and chemistry HESA Destinations of Leavers survey 2005/06 19 Russell Group STEM briefing paper, February Sustaining the skills pipeline in the pharmaceutical and biopharmaceutical industries, ABI Boliver V: Social Inequalities of Access to Higher Status Universities in the UK: The Role of University Admissions Decisions 22 Ibid. 23 Sutton Trust: Degrees of Success: University Chances by Individual School, July Note 21, Supra. 25 Representation of Ethnic Groups in Chemistry and Physics, The Royal Society of Chemistry and the Institute of Physics, March 2006
14 Disparities remain for students of different backgrounds even when students obtain the same A- level results. 26 Policy options and proposals In research undertaken on behalf of the LSB, the University of Westminster identified a number of options available to regulators to promote diversity in the legal professions. 27 Options identified included: offering bursaries for the Legal Practice Course (LPC) and Bar Professional Training Course (BPTC) stages and for trainees and pupil barristers; requiring the disclosure, and monitoring, of diversity data within firms and across specialisms; providing diversity training; supporting outreach programmes; and encouraging the development of formal support networks and mentoring schemes and supporting role models. Bursary schemes Of these options, bursary schemes are less applicable to the patent and trade mark professions than to those of barristers and solicitors. Unlike the training of barristers and solicitors where attendance at the LPC or BPTC takes place before a trainee starts work and where attendance at such courses is typically self-funded, training in the patent and trade mark professions normally takes place after a trainee has acquired a job and courses are typically funded by employers rather than trainees themselves. As such the costs of initial training are not such a barrier to entry as they are in other legal professions. 28 Diversity data As noted at the beginning of this paper, the LSB has issued statutory guidance requiring IPReg and the other legal services regulators to obtain diversity data on the regulated community. Due to the relatively small size of regulated entities and consequential concerns about data privacy, IPReg will publish aggregated data for the entire profession rather than obliging regulated entities to publish entity-specific data, although entities will be encouraged to publish their own data to the extent that this does not compromise data security. 26 Access to Russell Group universities far from fair, according to new research, University of Durham News, https://www.dur.ac.uk/news/newsitem/?itemno= Sommerlad et al: Diversity in the Legal Profession in England and Wales: A Qualitative Study of Barriers and Individual Choices, University of Westminster 28 Some trainees attend the MSc program run by Queen Mary before joining the profession. A limited number of bursaries are available for such students. However, this is a minority route into the profession.
15 Data on the diversity of patent and trade mark attorneys has been collected through the IPReg Pro website and will be published soon. As this paper has demonstrated, it would be useful to supplement the diversity data collected via the IPReg Pro website to include data on the university background of newly qualified attorneys to see how this varies over time. Systematic collection could easily be achieved by including an appropriate sections on the forms used when a student applies for entry on the register. It is suggested that the following data should be collected: Universities attended; Degree subjects studied; Whether an applicant has obtained a GDL or attended the LPC or BPTC; and Any professional legal qualifications the applicant has. Diversity training Recruitment into the patent and trade mark profession is largely undertaken by the larger patent and trade mark firms. This is reflected by the fact that around 95% of CIPA student members are employed by the 50 or so patent firms with 5 or more patent attorneys. 80% of students are trained by the 35 or so larger firms with 9 or more attorneys. The recruitment policies of such firms therefore have a very significant impact on recruitment into the professions and hence it is important that attorneys responsible for such recruitment are sensitive to diversity issues. IPReg has previously arranged for a presentation on the subject where the senior partners of these key firms attended. IPReg should consider including obligatory diversity training as part of the training required of Heads of Legal Practice when these are introduced in 2014/15. Supporting outreach programs IPReg does not have expertise or the resources to run an independent outreach program. Attempting to establish such a program would be a disproportionate and poor use of resources. A much better approach would be to partner with established programs, particularly those which target underrepresented groups who might become potential recruits to the profession. As noted above, amongst IPReg s regulated community, patent attorney recruitment is most likely to lack diversity due to the high entry level requirements for becoming a trainee. The patent profession is a highly competitive one and one in which attorneys compete on a European basis. Therefore it is entirely unrealistic to suggest that standards should be dropped for the purposes of increasing diversity. Rather, if diversity is to be increased, IPReg s efforts should be focused on increasing the diversity of potential applicants to the profession. In this respect, it would seem appropriate for IPReg to look to partner with a charity such as Generating Genius 29 which promotes the aspirations of disadvantaged individuals to study STEM subjects at elite universities. 29
16 If IPReg is to support such an outreach initiative, it should ring-fence a portion of its budget in order to fund it. If IPReg were to devote 3% of its budget to such an initiative, this would enable 15,000 to be provided on an annual basis for the purposes of executing IPReg s obligations to promote a diverse legal profession. Such partnering could involve both the channelling of direct funding to a charity such as Generating Genius and also the encouragement of professional involvement in mentoring programs run by the charity (e.g. by waiving or reducing practicing fees for individuals who volunteer). This would hopefully give rise to the twin benefits of encouraging individuals to obtain a scientific education and at the same promoting the professions to those students so that when they qualify they are aware of and consider joining the professions. Nicholas Fox, Professional Board Member
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