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Focus: Women make mark in male-dominated patent litigation

|Written By Julius Melnitzer

If gender equality is the measuring stick, then Marguerite Ethier is from Venus and Judith Robinson is from Mars.

It’s nothing less than a tale of two veteran patent litigation lawyers, women functioning in a male-dominated world. However, when it comes to gender equality, the similarities of their 25 years of experience in the field — they were both called in the early 1990s — may lie only in the practice area they share.

Both Ethier, now at Lenczner Slaght Royce Smith Griffin LLP in Toronto, and Robinson, who has practised at Norton Rose Fulbright Canada LLP and its legacy firms, speak favourably of their formative years.

Ethier worked in-house from 2000 to 2005, and then joined Lenczner Slaght. She began her career as a summer student at what was then Sim Hughes, an intellectual property boutique. Later, she articled at McCarthy Tétrault LLP, becoming the firm’s first patent litigation partner in 1998.

“I learned much at these firms, and the experiences solidified my desire to be a patent litigator,” she recalls. “I was fortunate to find litigation mentors who encouraged me and who were almost always male.”

At the time, other female patent litigators were nowhere to be seen.

“Women weren’t choosing patent law then, as it had been engineering-centric for so many years,” Ethier says. “In my first few years, I was often the sole woman in a room full of patent lawyers, experts, or clients, and I never worked with another female patent litigator in my first 10 years.”

However, as pharma and biotech-related work infiltrated patent practice, women entered patent practice in increasing numbers. By way of example, between 1970 and 2002, women comprised just nine per cent of the winners of the J. Edward Maybee Memorial Prize for the highest overall mark on the patent agents examination. Since 2003, the proportion has risen to 58 per cent.

While Ethier finds the trend “encouraging,” she isn’t sure that the growing numbers have made a real difference.

“Have things changed, really changed?” she asks.

Not if the off-the-cuff remarks Ethier continues to endure are any indication. They include suggestions by some “very successful” lawyers that “women don’t have the stamina for all-night corporate closing”; comments that “patents are for guys, trademarks are for chicks”; requests from clients to Ethier’s male seniors that “your girl go get us some coffee”; and salutations such as “listen, little lady.”

Ethier has also been accused of being a “bitch,” of “whining,” and of being an “arrogant, argumentative, and unco-operative” individual.

“The role of a patent litigator is to zealously advocate on behalf of our clients,” Ethier says. “However, behaviour that in men is considered to be tenacious, persistent, and fearless is characterized as bitchy, whiny, strident, or hysterical in women.”

To be sure, the demeaning remarks have diminished over the years — but they have not disappeared.

“Some are almost 25 years old,” Ethier says. “But some are within the last two years, and they’re always made by men, including judges on some occasions.”

Ethier also believes that the diminution is at least partly attributable to her seniority.

“The comments are fewer and less specific than when I was a young lawyer, but I have no doubt that they continue to be said about me and especially about my junior colleagues,” she says.

Her experiences, Ethier observes, are not uncommon among women at the patent litigation bar.

“Some of my stories pale in comparison to what I have heard perpetrated on others,” she says.

Robinson has been at Norton Rose Fulbright Canada LLP and its legacy firms since she was called in 1991. She’s experienced none of the inequality that plagued Ethier’s career and her experience with opposing counsel, clients, and judges is a positive one.

“I have always had a respectful communication with opposing counsel, and certainly nothing that I would ever identify as a gender issue,” she says.

Robinson believes that firm culture played and continues to play a huge role in her experience. While female patent litigators may have been scarce elsewhere, for example, that wasn’t the case at her firm.

“Ogilvy Renault, where I started, was founded by an IP practitioner and the IP practice was headed by a female litigator,” she says. “I always felt supported and encouraged, and our firm’s  disproportionate number of strong patent litigators probably includes more women than men in that category.”

But Ethier’s supportive years were also marked by support and encouragement at McCarthy.

The difference in their experiences with opposing counsel, clients, and judges, Robinson believes, may lie in her firm’s established reputation in the IP field.

“The firm culture at Ogilvy allowed me to get experience and a reputation quickly,” she says. “I think that facilitated things in ways that were not available to other women in the field.”

Still, Robinson believes that Ethier, whom she calls a “champion of this issue,” has a cause that merits attention.

“I don’t think it’s normal to look across the courtroom and see that there are no women on other legal teams,” she says. “I also think it unacceptable that just a handful of women appear in the legal directory rankings.”

As it turns out, Ethier remains hopeful.

“I do think that the increasing number of female patent litigators will change the dynamic,” she says.

Some will say that should have happened long ago.

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