Posted Nov 14, 2004 11:57 am CST
She was representing a major international biotechnology research company in a patent dispute with a rival company, and one of her co-counsel pointed out what was for Ben-Ami a first: Every lawyer present on her side of the table for the summary judgment hearing was a woman.
It was a dramatic, satisfying moment for the New York City lawyer, a trained biochemist and a 20-year veteran of intellectual property and patent litigation. And one she hopes to experience again.
That’s not to say Ben-Ami hasn’t seen women at the counsel table. But with few exceptions–Ben-Ami being one–first-chair positions throughout the IP disciplines are still largely reserved for men. Women scientists who go on to law school, she says, often end up as “faithful lieutenants” instead of commanding generals. “The real issue, I think, is getting the women from being second chairs to being first chairs,” she says. “That to me is the gap that still exists.”
And she adds that there are still instances where the table across from her is all male, except for the paralegals.
Because of the technical nature of IP law, lawyers in the field generally have a strong science or engineering background. This traditionally has given men an edge. “So long as most of the science-trained lawyers in intellectual property were expected to be specialists in the chemical sciences or physical sciences or engineering, there would have been a small pool of women [in the profession] over the past 30 years,” says Sheila Tobias, who manages a program that developed the Science Master’s, an advanced degree now offered at 45 institutions for science and math students looking for more career options.
The IP gender gap is least pronounced, however, in the specialty area of biological sciences, also called life sciences. For years, women have been close to or at parity with men in the biosciences. National Science Foundation statistics reveal that in 1980, only about 10 percent of the undergraduate degrees in engineering went to women, but 39 percent of bachelor’s degree recipients in biological and agricultural sciences were women. By 2001, the female graduates in engineering had doubled to 20 percent and in the biological fields had passed the 50 percent mark, with up to 57.3 percent of the degrees being awarded to women.
This has proved a happy development for those like Tobias who have studied gender gaps in the sciences. Given women’s prevalence in so-called life sciences, it was inevitable that they would take their training to the next level–law school–and then begin to rise through the ranks of IP law boutiques and practice groups.
So it shouldn’t have been too surprising when an all-female group of summer associates went to work last year for the biotech and pharmaceutical practice of Finnegan Henderson Farabow Garrett & Dunner in Palo Alto, Calif. It was an experience that didn’t go unnoticed by the group. “They were tickled,” says practice group leader Jean Burke Fordis.
To San Francisco litigator Patricia Thayer, an even more dramatic development is the number of women judges comfortable with IP cases. “That’s been as much of a positive development as seeing them in the associate ranks,” says Thayer, who concentrates her practice in the life sciences. She says it’s gratifying to see “strong, good female judges who don’t shy away from a case just because they are going to have to learn something about science.”
Looking back to 1984 when she began practicing, Thayer says she can’t remember a client with a female general counsel or director of litigation. “That has changed enormously.”
And while there are sure to be more of these anecdotes to come, Ben-Ami and others say there is still a ways to go. “When you talk to women who say they are trying cases, they’re not necessarily doing the entire case,” she says of women in IP in particular. “That to me is the final jump.”
Those interviewed say they will know the gap is closed when there are more women directing litigation for companies, more women gaining parity in fields outside of the biosciences, and more clients willing to hand their top-dollar cases to women. Having women in these roles doesn’t make the job easier per se. But Thayer and Fordis explain that removing shared barriers leads to a measure of satisfaction. “It makes you feel good that you’re not the only one out there,” Thayer says. “It validates that it’s an equal opportunity world.”
Ben-Ami also is optimistic, for a reason she hates to admit: Experienced female IP lawyers are getting older, increasing the chances that they will be able to command more central roles in even bigger cases.
“I personally hate to say that, but the reality is that when clients hire No. 1 lawyers for important cases–these are multimillion-dollar cases–they don’t tend to hire people who are 25 years old,” she says. “They hire lawyers in their 40s and 50s.”
Thayer agrees. “You have to have a certain amount of gray hairs before you have a client willing to entrust a case to you.”
Ben-Ami says she’ll be watching closely over the next 10 years as many of her male counterparts step into their mid-60s and take on a more “elder statesman” role.
And she waits for the next opportunity to work with an all-female trial team.