How RBG inspired generations of women in IP
Following the death of Justice Ruth Bader Ginsburg, lawyers reflect on her legacy and on the progress of gender equality in their profession
The passing of Justice Ruth Bader Ginsburg, the second woman ever to serve on the US Supreme Court, has left women (and men) in IP to mourn and reflect on her legacy.
Private practice partners tell Managing IP that Ginsburg’s words of wisdom, fight for civil rights and her role as a trailblazer have inspired them to break down barriers in their own career and continue fighting for gender and other forms of equality.
Mel Bostwick, partner at Orrick in Washington DC, says Ginsburg was a beacon, particularly for women in the legal field. “The challenge for us is to find that light elsewhere now that she’s gone.”
Lawyers were also inspired by Ginsburg’s positive attitude when she argued in front of SCOTUS earlier in her career and her ability to value differences of opinion and remain friends with those whom she disagreed with.
Those who were able to meet her in person, whether through clerkships at SCOTUS, arguing in front of the court or other means, say she was an active questioner during oral arguments and that she made efforts to form connections with female attorneys.
Against the odds
Dale Cendali, partner at Kirkland & Ellis in New York City, recalls Ginsburg’s words in United States v Virginia (1996). In that case, SCOTUS ruled that the Virginia Military Institute’s male-only admissions policy was unconstitutional. Ginsburg wrote that the constitution did not permit “artificial constraints” on an individual’s opportunity.
“Yet her own early career reflected those artificial constraints,” Cendali says.
Cendali points out how Ginsburg was a top student at Harvard Law School and tied for number one at Columbia Law School, where she later transferred. But Ginsburg did not receive job offers from top firms or law schools and didn’t even get an interview for a clerkship at SCOTUS, Cendali says.
“The idea that she was deprived of those opportunities because of her gender, despite her documented abilities, is an abomination. The fact that she managed to persevere through that discrimination and not just be successful herself but help make law to create opportunity for everyone, men and women, was extraordinarily meaningful and inspirational to me.”
Anna Naydonov, partner at Finnegan in Washington DC, says she is inspired by how Ginsburg was able to be successful in both her career and personal life. When Naydonov first started practising law, the issue of work-life balance and having both a career and a family was more difficult than it is now, she says.
Karen Artz Ash, partner at Katten Muchin Rosenman in New York City, says Ginsburg’s ability to manage her career and raise a family has also resonated with her.
“I’ve raised two, now grown, daughters while never missing a beat in my work life and my home life. Having her as an incredible example of managing all of those things has been a tremendous support.”
A way to go
But while gender equality in the world and the legal profession has come a long way since Ginsburg started practising, some lawyers are taking time to reflect on how far it has to go.
Annsley Merelle Ward, counsel at WilmerHale in London, points out that there has yet to be a specialised female patent judge in the UK. She has never practised before a female judge at a trial and didn’t have the opportunity to work with female IP barristers for most of her early career.
Merelle Ward notes that Ginsburg was an inspiration to women, not just in the US, but across the world. “She has given me the strength and perspective to keep pushing myself to where I want to be in my career and not let the chance of my gender or my sex diminish my ability to get there,” she says.
Bostwick at Orrick, who works in appellate law, says it’s hard to overstate Ginsburg’s influence on her. She says that even with all the progress that’s been made over the last several decades, women still face significant obstacles in pursuing a legal career.
“She was not only a woman in the highest position of power in our legal system; she was a fierce and unapologetic advocate for women and all people to be able to live full lives unbounded by the supposed limitations of gender,” Bostwick says. “She was both an example of living that kind of life and a force making it possible for the rest of us.”
Butterflies in court
Some lawyers say that Ginsburg’s character has inspired them to be better attorneys.
Maureen Rurka, partner at Winston & Strawn in Chicago, says that Ginsburg’s collegiality was the trait she found most inspirational and influential in the justice. Rurka says that Ginsburg not only engendered respect despite differences of opinion, but gave back respect.
“The ability to not turn policy disagreements into personal ones and to understand what the other side is arguing is not only important for a lawyer but critically important for a judge,” she says.
Ginsburg also encouraged those who have argued cases before the Supreme Court. Cendali at Kirkland recalls how nervous she was the first time she argued in front of SCOTUS. Cendali then read a book about arguing before SCOTUS where Ginsburg wrote the foreword.
Ginsburg wrote that she had butterflies in her stomach the first time she argued but then came to decide that arguing before the court was an opportunity as opposed to an ordeal. Ginsburg channelled her background as a professor to view arguing before the court as an occasion to teach and persuade the court.
“That idea made a big difference to me in having my own butterflies fly away, as it changed my whole conception of arguing from an ordeal to an opportunity,” Cendali says.
Cendali recently had the opportunity to argue a case in front of Ginsburg when she was counsel of record in Lucky Brands v Marcel Fashions Group, a trademark dispute that was focused on issues of civil procedure.
Cendali says she went into the case hoping she would get a lot of questions from justices and that at least one of them would be from Ginsburg. In the event, Ginsburg was Cendali’s first questioner, and the two were able to go back and forth with questions and answers (Kirkland’s client, Lucky Brands, won the case).
“I cannot tell you enough how meaningful it was to me to have had that experience at the very beginning of the argument,” she says.
John O'Quinn, partner at Kirkland & Ellis in Washington DC who also worked on the Lucky case, clerked for the late Justice Antonin Scalia and recalls witnessing some of Ginsburg’s questions.
“Having clerked at the court, I saw her in arguments, day in, day out, back when she was still one of the more junior justices. At every oral argument, she was a force to be reckoned with, and she was always immaculately prepared,” he says.
He recalls that Scalia said that when Ginsburg took on an unprepared lawyer, she shook their arguments like a dog with a bone. “To watch her back and forth with prepared lawyers was an incredible experience,” he adds.
Ash at Katten was able to spend some time with Ginsburg as part of her work with the Civil Appeals Management Program. Ginsburg was part of a group of justices that came to speak with those who were mediators and volunteers for the court.
Ash says Ginsburg made a real effort to speak with the women in the group. Part of Ash’s conversation with Ginsburg centred on how women still need to show themselves to be better, smarter and more capable for the same recognition, she says.
Virtue of dissenting
Lawyers say that Ginsburg had a significant effect on IP case law and authored many influential decisions, most notably in copyright.
Naydonov at Finnegan points out that she wrote the majority opinion in Petrella v Metro-Goldwyn-Mayer, a 2014 case in which SCOTUS said that laches cannot be used to bar a claim for copyright damages brought within the statutory three-year window.
Ginsburg also authored the majority opinions for recent influential trademark and patent cases. On the trademark side, she wrote the opinion in USPTO v Booking.com, and she authored the majority opinion in the patent case Thryv v Click-To-Call Technologies.
But Kathi Vidal, partner at Winston & Strawn in Silicon Valley, says Ginsburg’s dissents and the extent to which she valued dissenting stand out to her. “By virtue of dissenting, she felt like she kept the majority honest, and to me that’s a huge role that she played,” she says.
Merelle Ward at WilmerHale says that it’s important to point out that her legacy goes beyond her IP decisions. Ginsburg’s greatest influence has been what she’s done to rectify gender imbalance and other forms of inequality, including her support of gay marriage, she adds.
“These are things that ensure our profession and the people who practise are welcome and equal before the law, and that is beneficial to IP because we need that diversity and equality of thought and experience.”
It’s clear that Ginsburg’s civil rights record, outreach to other women, success in balancing a career with her family and role as a trailblazer have been an inspiration to women in IP. Her legacy will burn brightly as lawyers reflect on the obstacles that she and other women have faced and look to the battles that are ahead.