Today, roughly 40% of U.S. lawyers are women, 15% are people of color, and 8% are women of color. Yet people of color, and women of all racial identities, rarely climb to the most elite levels of law practice. This Article, based on a first-of-its-kind, hand-coded dataset of the gender and perceived race of thousands of lawyers and case outcomes, provides a stark illustration of ongoing racial and gender disparities, focusing on the high-stakes arena of appellate patent litigation.

All appeals in patent cases nationwide are heard by the U.S. Court of Appeals for the Federal Circuit, a court that is itself diverse: out of twelve active judges, five are women and four are persons of color, two of whom are women of color. But, out of 6,000-plus oral arguments presented to the Federal Circuit in patent cases from 2010 through 2019, 93% were delivered by white attorneys. Barely 2% were by Black or Hispanic/Latino attorneys. Adding in data about gender, white male attorneys alone argued 82% of patent cases during the decade we studied. Women of color, by contrast, argued 2%.

The disparities we find bear no correlation to attorney performance. Appellants in Federal Circuit patent cases win about a quarter of the time and appellees win about three-quarters of the time — with no differences based on race, gender, or the intersection of the two. The one cohort of lawyers in our study that does win more frequently is a small group of lawyers at large law firms who argue Federal Circuit patent appeals more frequently than anyone else. That group of roughly sixty-five lawyers is, like our dataset overall, overwhelmingly white and male.

In general, our study tells a dispiriting story: despite increasing diversity among law students and lawyers and no connection between a lawyer’s gender or perceived race and case outcomes, a lack of diversity persists at the legal profession’s highest levels. However, we identify discrete areas of patent practice where women, people of color, and women of color are more visible — most notably, in representing the federal government (as opposed to private-sector clients) in patent appeals. Those original findings inform our proposals to make the patent system, and high-level law practice generally, more diverse and inclusive.