The patent profession is not especially diverse when it comes to race and ethnicity. An oft-quoted explanation for this is that the work of a patent attorney requires exceptional communication skills.
This much I agree with.
… And so – the argument goes – a candidate for whom English is not the native tongue often struggles to reach the requisite linguistic standards.
This second strand of the logic is where I get worried. So let me invite you to explore it with me in more detail. Because it is just possible that when we compare a foreign candidate with one who is English born and bred, we are assessing the wrong communication parameters, or assessing them in the wrong way. It is just possible that these assessments are based on one of the most sinister, and yet the most entrenched, conceits of all.
Why do we equate good communication skills with good English? The two are not inevitably the same. Good English, as most in this profession would recognise it, is both eloquent and elegant. It flows comfortably (to us, that is – because we are English). It is infused with idioms, metaphors and other linguistic devices, which evoke layers of additional meaning (to us – because we are English). Synonyms enliven it. It is properly punctuated and accurately spelled (according to the rules we learnt at our English schools).
But is any of that really synonymous with good communication? Or rather, is that the only form of good communication?
Let’s be systematic in answering this. Firstly we must decide what, in the context of a patent attorney’s work, good communication looks like. I submit that the key requirements are for it to be:
- Cogently structured.
These are all that is needed to fulfil the function of a communication: to convey meaning to another person. Beautiful language is nice, but it is not essential if these other components are present; substance supersedes form.
Then we must look at the purposes for which a patent attorney needs to use her or his communication skills. Essentially, we need to define; to persuade; to explain; to advise; to instruct; and to interrogate. For all of these, clarity and accuracy are obviously crucial. Conciseness yields a more efficient and unambiguous communication that better fulfils its purpose. And a cogent structure ensures focus on the important issues, getting to the point in the most painless way possible.
Conversely, synonyms, idioms and metaphors risk confusing people and diluting the message. Vocabulary that is more familiar to the sender than the recipient causes misunderstandings and alienation.
As for the structural element, that stems from the underlying thought processes, not the language used to express them. There is no reason to assume that someone whose English is slightly under par is also incapable of identifying the essential elements of an invention, the key arguments in an opposition, the “big picture” strategic advice or the thread of logic that leads from a fact to a reasoned conclusion. Might I venture to suggest that someone who has to think more carefully about vocabulary and sentence structure (i.e. the “foreigner”) is perhaps better placed to focus on the important elements of a communication.
Finally, we must think of our intended audiences. Yes, some are well-educated English lawyers, judges and civil servants. But a significant number of the people we communicate with don’t have English as their first language. EPO examiners, for instance, and overseas attorneys. And increasingly, our clients, whose international businesses embrace ever more diverse personnel. Even our English clients are rarely as skilful with their native language as the typical highly-educated patent attorney – and nor, frankly, do they care as much about linguistic skill as we do.
These people will not thank us for elegant, evocative pages of text. They want pithy communications that translate easily and unambiguously and that don’t make them feel inadequate. They want language that communicates efficiently.
This, then, is surely all we should ask of the candidates we recruit into our profession: communication skills that are fit for purpose. Literary finesse, in the business world, is over-engineered luxury.
Consider this too. A racially and linguistically diverse client base benefits from a racially and linguistically diverse pool of professional advisers. If we continue to assume that only the very best Queen’s English – peppered with antiquated legalese and Latin – will suffice, we erode our competitiveness. I have heard it said that the Chinese prefer to converse with the Germans, who also use English as a second language and thus reduce it to its functional core, than with the English with their polite and flowery ramblings. If that is the case, we need to recruit new types of communicator.
Don’t get me wrong. I love the English language and I still flinch at badly written text. But let’s be pragmatic about this: it is only the ill-thought-through, poorly structured communications that really fail, and inferior thinking is not inevitably the author of imperfect language. If an overseas associate instructs me in less than flawless English, nine times out of ten it presents no problem at all. If a client or an inventor writes a sloppily punctuated or misspelled email, I don’t misunderstand, and I don’t condemn them; I just get on with helping them. So we should ask ourselves, honestly: is excellent English really more important than scientific and legal aptitude? Is a grammar test an appropriate way of finding a good patent attorney for 21st Century businesses? Do spellings matter more than a healthily diverse, creative workforce?
We make assumptions about people’s written work. But there’s a risk that these assumptions are both unjustified and dangerous. Dangerous to our diversity, to the well-being of our profession and the people in it, to its evolutionary chances. To read a poorly punctuated piece of English, or one that lacks elegance or idiom, and deduce from that a writer of inferior potential, is as bad a form of snobbery, and just as insulting, as a belief that anyone with a particular regional accent is untrustworthy.
I believe it’s all too easy to confuse “good communication” with communication that looks exactly like ours. It’s easy to judge other people by our personal standards rather than objective criteria that are relevant to the task at hand. And so we continue to recruit in our own image. This is indeed a conceit. And it might be costing us access to a vast pool of talent.
Yes, talent. Talent what don’t necesarily look like it use to, but is nevertheless more than capable of doing what a patent attorney does best: distilling and conveying the very essence of an idea.
IP Inclusive task force leader