Professor Colleen Chien on Innovation, Equity, and Racial Justice

Berkeley Law Voices Carry podcast

In this episode, host Gwyneth Shaw talks with Professor Colleen Chien ’02, a cross-disciplinary scholar whose research spans innovation, intellectual property, and the criminal justice system. She’s just joined the Berkeley Law faculty — the ninth hire for the school this year. 

Chien is a Berkeley Law alumna and studies a wide range of topics, including innovation, intellectual property, and the criminal justice system. A faculty co-director of our Berkeley Center for Law & Technology, she also founded and directs two grant-funded research initiatives: the Innovator Diversity Pilots Initiative, which develops rigorous evidence to boost inclusion in innovation, and the Paper Prisons Initiative, which conducts research to address and advance economic and racial justice. 

She was a member of the Biden-Harris transition team and has worked as a senior advisor on IP issues in the Obama White House, the U.S. Department of Commerce, and the U.S. Patent and Trademark Office, where she currently serves as a Marion Croak Distinguished Scholar. 

Click here to read more about Professor Chien and her work. Here are a few of her many publications if you’d like to dive even deeper:

Improving Equity in Patent Inventorship

America’s Paper Prisons: The Second Chance Gap

The Inequalities of Innovation

Rigorous Policy Pilots: Experimentation in the Administration of Patent Law

About:

“Berkeley Law Voices Carry” is a podcast hosted by Gwyneth Shaw about how the school’s faculty, students, and staff are making an impact — in California, across the country, and around the world — through pathbreaking scholarship, hands-on legal training, and advocacy. 

Production by Yellow Armadillo Studios.


Episode Transcript

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GWYNETH SHAW: Hi, listeners. I’m Gwyneth Shaw and this is Berkeley Law Voices Carry, a podcast about how our faculty, students, and staff are making an impact through pathbreaking scholarship, hands on legal training and advocacy. In this episode, I’m talking to Professor Colleen Chien, who joined the Berkeley Law Faculty this fall. She’s an alumna and studies a wide range of topics, including innovation, intellectual property, and the criminal justice system, and is a faculty co-director of our Berkeley Center for Law and Technology. She also founded and directs two grant funded research projects, the Innovator Diversity Pilots Initiative, which develops rigorous evidence to boost inclusion in innovation, and the Paper Prisons Initiative, which conducts research to address in advance economic and racial justice. She was a member of the Biden-Harris transition team and has worked as a senior adviser on IP issues in the Obama White House, the US Department of Commerce and the US Patent and Trademark Office. In other words, she’s a rock star. And she’s here to talk about all of her research, particularly a new paper that’s just been published in Science. Welcome, Colleen, and thanks for being here.

COLLEEN CHIEN: Thanks for having me.

GWYNETH SHAW: As I mentioned, your work is quite wide ranging, what sparked your interest in all of these areas? And how have you been able to weave these strands together?

COLLEEN CHIEN: So I think of myself as a curious person, and fortunately, I find a job that I can be curious in a lot of different ways in and I actually get to keep my job. So that’s been a real nice thing. I think also being able to work with students and learn from their experiences has made me curious about their lives, and what they’re working on what makes what’s exciting for them. And I’ve been able to follow that in different ways. So for example, I’m teaching an artificial intelligence class next semester at Berkeley. And I’m very excited about that. That actually came from a student of mine who was a research assistant. And when I was at Santa Clara, and after she graduated, she said, Professor time you need to teach something in AI. And I followed her good advice, and I’ve been teaching AI for several years. But it was way far before it became a big topic on everybody’s mind.

GWYNETH SHAW: Tell me about your new article in Science, which has just been published. It’s about improving equity and patent inventorship. What are some of your policy prescriptions in that article?

COLLEEN CHIEN: The very simple concept behind this paper is the idea that if you want people to participate in putting their best effort forward, you need to recognize them, and you need to give them credit for their effort. It sounds like a really simple idea. But it’s not the legal standard. Right now, when it comes to innovation, which is the area and realm that we’re focused on. in patent law. The only person that can be an inventor is somebody who has conceived of an idea that is kind of the touchstone of inventorship. Well, that sounds great. In principle, in practice, it ends up leaving out a lot of people who have contributed to an invention by reducing it to practice or iterating and testing it. And so therefore, the person who gets the credit generally ends up being the more senior person and in many cases, women and people who are more junior are left off patterns. So the idea behind this paper really is to try to measure what would happen if we change the standard of recognition. So not just recognizing the one conceptualized or leaving everybody else off. But what if we recognized everybody, if we recognize everybody, we might have more participation. And right now we’re at a state where only 13% of inventors or women, we think that this idea if it catches on, could get more people off the bench and into the innovation ecosystem.

GWYNETH SHAW: This seems related to your Innovator Diversity Pilots Initiative. How did that get started? And what are some of the things you and your colleagues on this project are learning? I know, there was a conference, and you’ve also spent some time working with a pretty big team of people? 

COLLEEN CHIEN: I’m so glad you asked about that. And I think it was, you know, in terms of the way the project came about, it was a lot of us who were doing rigorous research, she thought, well, we should also apply the same level of rigor, and emphasis on actually generating evidence to the area of diversity, something that I think all the researchers in the collaboration are committed to. But oftentimes, we know that diversity of priorities are set potentially by, you know, kind of legal requirements or commitment to the business case for diversity. But we actually really want to bring forth the innovation, empirical case where diversity and so that’s what our project seeks to do. On this last paper that’s just come out, for example, we are advocating for the experimentation. That’s why it’s called the diversity pilots initiative by companies with this idea, for example of giving more credit to the innovators who may not rise to the level of being an inventor, but we want to ask them and work with them to recognize their innovators and to see if that then spurs those innovators to be greater participants in innovation. And we also think that the patent office could take a step in this direction as well. And instead of just recognizing inventors, currently, that’s the law has defines inventorship but the patent offices office still has some leeway on what goes onto the front page of a patent. And also what which innovators might be elevated in terms of recognition in the patent system. So the diversity pilots initiative tries to work with companies to have them pilot, right. So we don’t use the word experiment, but we kind of use the word pilot, to say, let’s try something, let’s be rigorous about how we do it, let’s do it with randomization, if possible, so that half of the group will get the new treatment and half won’t and so that we can really measure what the impact is. And with that finding, we can scale it to other companies, other settings, and hopefully, eventually strengthen the evidence base for policymaking. So we want to try to try it first in a small setting, and then scale it up to a larger setting.

GWYNETH SHAW: You mentioned using empirical methods as part of your research and a lot of the researchers working on this initiative. It’s an increasingly common thing in in legal research to be using these empirical methods. What do you think these methods bring to your work? And why do you think it’s important that you to get that data to get to get those benchmarks into legal research?

COLLEEN CHIEN: Well, I say personally, it’s because I love to, you know, play with data, work with spreadsheets, and to bring a different part of my brain. I was trained as an engineer, an undergrad, I also pursued humanities. And I think the combination of the two makes for a much better product at the end of the day, because you can really bring the storytelling and the kind of evidence that you’re getting from lived experience from the law itself, with actually the data to understand what is the scope of the issue that you’re looking at? How important is it? How significant would it be if you made this one tweak? And so I think as policymakers are going forward, lawmakers are trying to figure out, should we make this change? Or should we try this to change standard? I think the empirical methods can help inform, do we actually know whether this will work, and also how many people might be impacted by it? 

GWYNETH SHAW: And that leads me to the other project that you founded and are working on right now, the paper prisons initiative, after you published a Michigan Law Review article about what you call the second chance gap? This was a shift for you doesn’t involve patents or IP. But how did you get into this? And tell us about what’s a paper prison? And what is the Paper Prisons Project trying to accomplish?

COLLEEN CHIEN: So the way I got involved in this is, again, by following my students, and I think this really followed from the tradition of what Berkeley Law is discrete at, which is giving students sort of diverse experiences letting them do pro bono. So in this case, I just come back from being in the Obama administration, Obama was the first president to visit a federal prison, I think, ever. And when he did that, he realized that there were a lot of people behind bars, that if they had been sentenced, now, you know, sort of in the current climate would have a much shorter sentence. And so he used that insight to develop the Obama Presidential clemency initiative, and allowed for people to apply to reduce their sentences. If it was the case that they met a number of criteria, one of which was that if they were sentenced today, their sentence would be much shorter. And this is because of the fallout from the war on drugs that we know that a number of crimes now had shorter sentences. So as part of this process, I worked my students, we wrote declarations, we got to know family members, and really put together what we thought were going to be very strong applications for clemency. And we are so excited to see these people sort of be free. I remember one woman in particular, she was really bright, her parents and family members were extremely supportive. She had been a drug mule for her uncle, when she was in her early 20s. And she was serving part of multi decade sentence, she had nothing else on her record, and she was exemplary in her prison performance. She had no incidents of any any anything to report. So with her in particular, I really got to know the people around her. And we were just really excited to to help bring her home. But unfortunately, that’s just not how things worked out. First was one of over 1000 applications that were never even looked at before Obama termed out. And this kind of insight that there are administrative barriers that keep people trapped, in this case, literal prison, the case of expungement, the paper prison that comes with living with conviction, which is stunning to me. And so anyway, I went back to doing patent research was very happy to just sort of tune that out. But then once I started really kind of knowing that this was a thing, I noticed that this idea of a paper prison that people were being held back by red tape, not steal bars, was prevalent in many rounds. So in the area of expungement, one in three adults has a criminal record and living with a criminal record means having collateral consequences. You can’t volunteer, you can’t adopt. You can’t do certain jobs, you can’t apply for certain schooling, or you know, get certain types of licenses like to be a barber or to be a nurse. And so it really holds people back. And so laws have been passed to us. People to expunge their records. But because of the bureaucracy and the difficulty of actually accessing the legal system of getting a lawyer and filling out that form, which often costs them 1000s of dollars, many people are trapped in this paper prison unable to kind of move beyond what, you know, their past. And so the inside again that when I did the math and sort of figured out, well, let’s look at state by state, what is the eligibility that I’m seeing in the records and what is actually the uptake of it, it was in many cases, less than 10% of people who were eligible to get a better life that were actually accessing it. So that led me to found the paper Britons initiative. And I was lucky because I think this was starting to be a topic that many people were interested in. And so I was funded to create the paper prisons initiative to kind of localize this Michigan law review article to different states and try to understand what the opportunity was in each state to automate. And close the second chance gap through these laws have been passed. So again, the Clean Slate Initiative has worked to take the research and then try to use that to close a second chance gap. And and many states now have passed these laws, which has been very gratifying to see. 

GWYNETH SHAW: And how important is this in California, which, as you mentioned, has passed some of these laws to try to help people get out of these traps.

COLLEEN CHIEN: So yes, in California, like in other states, a large percentage of the population has in lives with criminal records. Now, the state has been more forward leaning with respect to passing laws, to both provide for greater relief for people to apply for or even automatically get expungements. But the implementation has still been very difficult. So what I’m seeing now is still evidence of what I call the second chance gap. So a minute in some cases, when the law has said, we will automatically clear certain records or provides some sort of relief, those records still end up popping up. And so even though we are leading as a state in many ways, I think the implementation is still something that we need to work through. But I think another anecdote that was relevant for me was my son at that time, I was going to an after school program. And I found out that one of the after school teachers was no longer able to work there. What had happened was that he was a queer black man, and he was teaching that program. And one evening, he was involved in some sort of you no incident, and he was accused of sexual harassment or sexual assault. It was just an accusation. And the way he tells me it was just kind of a lover’s tiff sort of situation. But because of just that arrest, he was never convicted, he was never found guilty, he was not able to teach in the public school system anymore, he was removed from that. And he not only could he not teach my kids school, he was not able to teach in any school. And so because of this one incident, this one record of having just an arrest, not a conviction, he had to pivot his whole life. And so I thought, well, you know, and we tried to work to help him get his record cleared. It just helped me understand the consequences that can flow from just one criminal justice contact, and the injustice that kind of fluid flow from that made me realize that this is maybe not the issue that I wanted to work on that I chose to work on it, but that I need to work on because it is so pervasive, and so holding so many people back. And so that’s why I’m working in this area, not because, you know, I was a patent lawyer who wanted to dabble in criminal justice, but because it is very consequential. And I think that it’s my privilege to be able to do empirical work. And to do it in this realm.

GWYNETH SHAW: You mentioned you were trained as an engineer, met, but you also did a couple of other interesting things before you went to law school and went into legal academia. You you worked at NASA’s Jet Propulsion Laboratory. And you also worked as an investigative journalist. Are there elements of those jobs that you still keep in your sort of quiver as a as a law professor, or the storytelling or other things that you feel like you bring to the table because you did those jobs?

COLLEEN CHIEN: I think the answer is that you can do a lot of things and still go to law school and become a law professor. And you know, some some degree, I believe those different experiences can enrich a roommate enrich your experience and make you more well rounded, because ultimately, the law is about regulating the systems, the people that are in society. And so having a broad life experience, I think can really help you be a better lawyer and advocate. I think journalism is something that we all need to the skills of journalism are things that are really important for lawyering, keen listening, curiosity, asking questions, and really trying to piece together the full story of what’s happening, right, because you might encounter a client who’s going to tell you one part of what’s actually you know, what, their version of the facts, and you’re gonna need to try to understand well, how is the jury going to perceive this or how’s the judge how’s this going to go over with a judge or with opposing counsel, and so being able to to kind of listen keenly and to tune into sort of all the things that are happening is very important. And then I think, as an engineer, that a lot of the focus on precision and dedication to detail is precisely what you need as a lawyer, you need to be very careful in trying to think about the words you use, and to be able to reflect the differences in the nuances in the law, in the same way that you might need to in an engineering context, there’s a lot of focus on being precise, like I worked at NASA, you needed to ensure that everything was, you know, all the measurements and all the kinds of parameters that you were working on were exactly correct, because if they weren’t, you’d, there would be consequences. So I think in both realms, dedication to getting it right, and to persisting through that, whether it be through kind of synthesizing information and, and trying to understand the legal issue in depth as a, you know, sort of from a storytelling perspective, or iterating, and doing the research and really persisting through it. And being precise with detail. Both of those skills have or I think are really important for doing the law correctly.

GWYNETH SHAW: So you’re just wrapping up your first semester at Berkeley Law? What’s next on the horizon for you? I know you said you’re teaching an AI course in the spring. What’s what’s next for you on the research agenda?

COLLEEN CHIEN: So the diversity pilots initiative, I think I mentioned before, we have a conference next fall. And so right now we’re working with companies to actually determine what kinds of pilots they’re going to launch. And we’re going to experiment with some of the different ideas here. One of them is this idea of giving more credit to folks who may not rise to level inventorship. But another is very simple. It’s around trying to actually proactively reach out to people and recognize them as innovators, and ask them and invite them to participate in innovation. Because right now we have a lot of times to opt in process will people will have to give their own ideas and sort of raise their hand, we want to go to them and say, Hey, we think you probably have something interesting to contribute, why don’t we have a conversation. So we’re going to experiment with that, and some other ideas that I’m really excited about, to basically launch and do field experiments. With respect to diversity pilots. On the paper prison side, we are doing a number of studies, one is on the Racial Justice Act. And again, the study of the public state papers coming out in a couple weeks, in December, it’s already posted in SSRN. And it’s on the Racial Justice Act. But what I think even more exciting for me is that we’ve been working for a long time now. And hopefully, once we get approved from the California Department of Justice, we’ll be launching a tool that allows public defenders and others to access the relief that’s guaranteed by the law. So what the Racial Justice Act is, it was a law passed in the wake of the murder of George Floyd that purports to outlaw racial bias in the criminal justice system and California. And the way that the law provides relief is by the showing of a racial disparity that can then utilize his further discovery to determine whether there’s actually racial bias that is connected with a racial disparity. And even though the law was passed in 2020, there have been very few cases because the data to actually show that disparity has been marked up, we’ve been working steadily, to try to make the data more widely available and are hoping to launch that tool later this year or early next, our racial justice acts symposium that’s being held at Berkeley Law, but that should allow for public defenders and others who have potential Racial Justice Act claims to exit the data. And even though we haven’t shared this widely, we’ve sort of talked about it with some users to try to get their feedback. We’ve already because the paper has been out, gotten inquiries. One person wrote to us and said, you know, my father has been in prison since I was small. We think he has a very strong racial justice claim, you know, is there a way that you could potentially give us data so that we could look into this? And so we do see why potential applicability of this, as there may be a lot of people in prison who might be able to take advantage of the relief as well as people who are going through the criminal justice process who might be able to use the data to try to understand whether or not there were improper racial discrimination elements in their arrest.

GWYNETH SHAW: Well, that’s really exciting. Sounds like a really amazing breakthrough. When that gets get that gets going. Thanks so much, Colleen, for joining me. 

If you want to know more about Professor Chien and her work, check the show notes for links to her many papers and projects and more information about her. And thanks to you listeners for tuning in. Be sure to subscribe to voices carry wherever you get your podcasts. Until next time, I’m Gwyneth Shaw.

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