For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

Two of our regular Kats are currently on blogging sabbaticals. They are David Brophy and Catherine Lee.

Sunday, 6 January 2013

Intellectual property and gender: a Katonomist writes ...

Nicola Searle, alias the Katonomist, may have strayed off in the general direction of the UK Intellectual Property Office, but some of her Katwork was still in the pipeline.  This is the first of two pieces which predate Nicola's final relinquishing of the status of Kathood -- and, like Nicola herself, it's an absolute cracker!

PHOSITA: Puss having outstanding skill in the art ...
This departing Kat is a feminist. Prompted by a rather unusual conference dinner talk on gender and patents, and Neil’s recent post on the gender gap, it seemed time to take a look at IP and feminism. The feminist debate touches on a number of economic development, gender and property issues. The dinner talk in question, by Dan Burk, asked whether patents have gender.  Burk looked at the legal concept of “Persona Having Ordinary Skill in the Art” (PHOSITA) used in US patent examination and found that this person appears to be gendered. Considering that the PHOSITA is a character of legal fiction, gender is unnecessary but something Burk notes is found in other areas of the law. In his talk, he also noted that patent inventors are predominately male.

What does this mean for the patent system? Waverly Ding, Fiona Murray and Toby Stuart confirm the dearth of female patentees. They find that female scientific faculty members patent at 40% the rate of their male colleagues. However, their analysis of publications by academic scientists found no evidence that women do less significant work. Their research suggests that the professional and social networks of female scientists have fewer commercial contacts, which is a potential source of the discrepancy seen in patenting. This hits on a key point in the feminist literature – why are there so few female inventors? This isn’t a novel debate. In the 1700s, Voltaire wrote (via Sharmishta Barwa),
“‘[t]here have been very learned women as there have been women lawyers, but there have never been women inventors.” 
 There are likely many reasons for this, which include educational opportunities, access to resources and professional networks. Sharmishta Barwa and Shirin Rai further argue that patriarchal language and structure does not identify female innovation. That is, much of innovation by women is considered to be outside of the scientific mainstream. One example of such innovation is traditional knowledge. Santhosh M.R. and Ranja Sengupta note that traditional knowledge is a "gendered science" dominated by women and notoriously problematic in IP. Another example is craft labour, which incorporates caring labour (work that involves connecting to other people) and emphasizes social structures. Deborah Halbert argues,
“This predominantly female type of knowledge construction can be contrasted to “industrialized labor,” which is claimed to be primarily masculine in construction. Industrialized labor exists within a system of production that generates knowledge in the abstract sense, instead of placing knowledge within social relationships. Women historically have been shut out of the industrial system of knowledge production, a system that takes place in factories, laboratories, and research institutes.” 
 A key theme in the feminist literature, and one that echoes that of international development literature, is the concept of ownership created by IP. Property (and copying) is a culturally defined concept. For feminism and IP, this is further complicated by women’s status as property and right to own property. Barwa and Rai put it this way,
“feminist understanding of knowledge and its creation have challenged the view that would allow intellectual production to be given the status of property.” 
IP is also gender relevant because it can discriminate against those without significant resources to create, obtain and enforce such rights. Given that women hold only 1% of the world’s wealth, the costs of IPR is a barrier to entry [Merpel notes that this sounds a little bit like the argument that the IP system discriminates against small firms].  Santhosh M. R. and Sengupta note that the proportion of household spend available to Indian women is lower than that of men. If patent enforcement increases the cost of medicines, women are proportionally more affected by the change in relative prices.

Taking the feminist argument a step further to look at legal interpretations of sex in IP, Jennifer E. Rothman argues that IP law contributes to legal construction of sex that is predominately negative. She terms this “sex exceptionalism”. Rotham provides various examples in which IP law distinguishes between good and bad sex. For example, in the oft-cited case which sends audiences atitter, the sexualised lingerie brand Victoria’s Secret successfully enforced its trade mark over erotica shop Victor’s Little Secret, not on grounds of likelihood of confusion, but on tarnishment. The USPTO rejected the trade mark application for “Bubby Trap” for bras but approved “Hooters” and its mammarian owl logo for a restaurant. Rothman notes that this exceptionalism is changing and content previously denied copyright protection on grounds of obscenity, including an 1898 song referring to a woman as “the hottest thing you ever seen,” would now be protected.

Policy tends to reflect existing power structures, and the feminist critique of IP law is also a critique of these power structures. The recognition of gender issues in IP alone is a start. It reminds me of this quote on sexism from Terry Pratchett,
“We got a talk about it [sexism] at school. There's lots of stuff most girls can't do, but you've got to pretend they can, so that more of them will.”

6 comments:

Suleman said...

Feminist critiques of power structures have the very important function of realising the existence of the power structures and throwing light on our psychological response to them. I think the oft-quoted opinion that women are better at recognising power structures in situations (e.g. class rooms, board rooms, research labs) is true. However I think until now many have worked within existing power structures, and are less likely to overturn them. To do well in certain situations does require a pushiness/forcefulness and strength to challenge the prevailing culture and dominant people. I think more and more women are appreciating that and are able to do what is necessary to succeed. Hopefully in doing so they will make the required inroads into the remaining male-dominated activities.

Michael Factor said...

The cost of patenting may discriminate against those with lower income and this includes women, but most patents are filed by universities and corporations and women inventors are still rare. I suspect that if a married female inventor was bankrolled by her husband, she would still appear as the inventor or joint inventor.

Most universities having tech transfer capabilities file applications and then look for partners to further commercialization. Women are key players in the Israel tech transfer offices of the universities, but are rarely inventors.

I know it is not politically correct, but maybe women and men think differently?

I have an aunt who was brought up in an egalitarian Kibbutz where boys and girls were treated exactly the same. she maintains that if it were left to women, we would still be living in caves. Women would decorate the caves and sweep the floor, since they are genetically programmed to make do and to build homes. Men are programmed to try to break out and improve.

At an event in Bar Ilan university, a lady lecturer, Dr Shlomit Yanitsky-Ravid argued that patent law, by limiting patents to technology, discriminated against women as women are less technologically minded. She suggested allowing patents for inventions in the social sciences.

I have drafted and prosecuted hundreds of patent applications, and female inventors are rare. where they are part of a team in industry or academia, it appears that they are generally NOT the main driving force behind the patent.

One caveat to this - I generally write applications in the physical sciences and engineering. It may be that in life sciences, women are more active in inventing. There appears to be a higher proportion of women researching and teaching
these areas.

Slightly amusingly, one of the few patents that I have drafted where the inventor was female was US 6,755,051 for "Novel knitted garments and methods of fabrication thereof." The patent covers an invention of Rachel Israel, an engineer at Delta Galil Industries, and relates to a novel techology for fabricating knickers. Go figure.

Nicola said...

Michael Factor - I would highly recommend you read the Ding, Murray and Stuart paper which addresses a number of your points.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1260388

Anonymous said...

There is an article in the CIPA journal discussing diversity within the patent profession. Slightly more detailed than the previous dismissal of discrimination (race, social background) by one of the contributors in her day-in-the-life style blog.

This time I am pleased to see a long-standing member of the profession make clear that things have changed over the past 20 years. Apparently he recently interviewed several candidates and couldn't even remember which university they came from. How that is evidence of a lack of discrimination against the lower classes or ethnic minorities (or combination thereof) is beyond my state-school-educated grey matter's ability to understand. He should rest assured, however, that they will have come from the same gene pool as the majority of attorneys from the previous century.

Anonymous said...

Shoulder; a chip thereupon!

Lilian Edwards said...

Finally catching up on this. Good stuff. On what women do not being seen as inention, or innovation, I am reminded of thefinale of the last series of The Apprentice, where Surallen rubbished the female finalists eminently sensible suggestion for a service providing part time outsourced PAs (I'd have signed up instantly)in favour of, um, a rather uncomfortable chair :-(

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