Friday, November 2, 2018

How will the USPTO study gaps in patenting by women, minorities, and veterans under the new SUCCESS Act?

On Wednesday, President Trump signed H.R. 6758, the Study of Underrepresented Classes Chasing Engineering and Science Success Act of 2018 (SUCCESS Act). It states that the "sense of Congress" is that the United States should "close the gap in the number of patents applied for and obtained by women and minorities to harness the maximum innovative potential and continue to promote United States leadership in the global economy."

The USPTO has been charged with conducting a study that "(1) identifies publicly available data on the number of patents annually applied for and obtained by, and the benefits of increasing the number of patents applied for and obtained by women, minorities, and veterans and small businesses owned by women, minorities, and veterans; and (2) provides legislative recommendations for how to— (A) promote the participation of women, minorities, and veterans in entrepreneurship activities; and (B) increase the number of women, minorities, and veterans who apply for and obtain patents." Congress wants to receive a report on the study results within a year.

There is already great empirical work on gender and racial gaps in patenting, including the "lost Einsteins" work by Alex Bell, Raj Chetty, Xavier Jaravel, Neviana Petkova, and John Van Reenen and Colleen Chien's Inequality, Innovation, and Patents. The USPTO could expand on this work, including by adding to its excellent collection of research datasets. Accurately quantifying the net benefits of increasing patenting by certain groups will be more difficult—especially if the agency follows Jonathan Masur's suggestions for improving its economic analysis—though the second half of the study doesn't depend on getting this number right.

The second half of the study—recommending how to promote entrepreneurship and patenting by women, minorities, and veterans—will require the USPTO to master a different strand of the empirical literature. I've spent some time digging into this work for my upcoming discussion group on Innovation and Inequality, and suffice it to say that there is robust debate about why certain groups are underrepresented in science, engineering, entrepreneurship, and patenting. (Though I haven't seen anything focused on veterans.) There's also increasing academic interest in these issues. For example, at the new Cardozo-Google Project for Patent Diversity, the goal is "to increase the number of U.S. patents issued to women and minorities," mostly by matching resource-constrained inventors with pro bono patent attorneys.

The USPTO is well positioned to bring new evidence to this debate, and I hope it will take this study as an opportunity to test some proposals in rigorous ways through actual field experiments. The agency has shown a wonderful willingness to experiment with pilot programs, but it could learn far more by, for example, randomly selecting only a subset of those opting in to the pilot and comparing their outcomes to those who opted in but weren't selected. (For a review of the literature on learning through policy randomization and some potential applications in patent law, see Part II of my Patent Experimentalism.) Such experimentation could be useful even for small questions, such as whether acceleration certificates (like those used as Patents for Humanity prizes) are useful at increasing pro bono volunteer work among the patent bar.

The SUCCESS Act seems like an exciting chance for the USPTO, and potentially for academics the agency collaborates with, so I look forward to seeing how they use this opportunity.

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