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Wednesday, 11 June 2014

IP laws that discriminate against minorities: can you help us list them?

A distinguished academic intellectual property professor who quite by chance also happens to be a good friend of the IPKat has asked him to crowd-source a request for information that has been troubling her. She asks:

Heaven forfend!
“Does anyone know if some countries have IP laws with provisions discriminating against minorities, such against women, against certain sexual orientations or religious groups? I am thinking for instance of provisions preventing women from obtaining a patent etc. (in the past some countries discriminated against foreigners: this is taken care of by national treatment now -- although some countries may still have such provisions if they are not part of TRIPs and most other IP conventions).   I imagine that this sort of directly discriminatory intellectual property laws does not exist and that forms of discrimination may not be written as such in the law, but may happen in practice (such intellectual property offices practices). If so, I'm interested in that too.”
While the male to female sex ratio is reflected in a birthrate of 101 men to every 100 women, Merpel thinks that women are a majority because they tend to live more than 101 years for every 100 lived by men (there are some interesting statistics here).  Be that as it may, if you know of anything that smacks of discrimination, do let our professorial friend know.

18 comments:

Anonymous said...

I can think of an example. How do I reply to the person asking?

Japser said...

I know the New Zealand patent law provides a section that in certain cases, advice from the Maori population may be required.

Anonymous said...

Dear Mr. Philips,
I am not an expert on this topic but I suspect that you will not find any discriminatory clauses in national IP legislation.
The first source should be constitutional law. If the constitution does not explicitely guarantee equal rights to everyone, that could be an indication of discrimination. Then you may look further into more general rules in civil law. The interesting question is whether are all citizens of age of a certain country entitled to make legally binding declarations such as signing a contract or submitting declarations before public authorities such as filing a trademark or patent ?.
Best regards Christian Schalk

Anonymous said...

Does your correspondent's interests extend to past injustices, or are they limited to only contemporary ones?

katemim said...

I don't know of any direct discrimination (of the "you're a woman therefore you can't file a patent" variety) but there's certainly a structural argument to be made that the power dynamics already in play mean that intellectual property could discriminate against the disadvantaged.

Look at: bit.ly/1quel3H, bit.ly/1lnsmzx, and bit.ly/SNn6dx for some really interesting articles on the subject.

Jeremy said...

Thanks, Anonymice and others, for your comments so far.

If you would like to contact the questioner directly, email the IPKat's account at theipkat@gmail.com and I'll put you in touch.

Jeremy said...

Thanks, Anonymice and others, for your comments so far.

If you would like to contact the questioner directly, email the IPKat's account at theipkat@gmail.com and I'll put you in touch.

Charles said...

The example which first springs to mind is US 20070274572 A1.
"Claim 2. A gender identification method characterized in conducting gender discrimination based on the temperature of a facial region of a human."

Anonymous said...

Not sure it is discrimination against a minority but a patent application cannot be filed in North Korea if it names a South Korean national as an inventor (or at least 3-4yrs ago you couldn't).

Anonymous said...

In the US, the examples that I immediately thought of were trademarks for sports teams.

Estelle Derclaye said...

Hi
Estelle here. estelle.derclaye@nottingham.ac.uk

I am the one who posed the question and yes I'm interested in past injustices too.

thanks everyone for all the very interesting information!

Feel free to email me directly if you like.

Anonymous said...

This is a little off-topic but EP 785216 caused controversy in 2005 when claims limited to diagnosis in Ashkenazi Jews were upheld in opposition (see for example http://www.the-scientist.com/?articles.view/articleNo/23391/title/BRCA2-patent-upheld/). So there is the potential for patent claims to be discriminatory.

Again this is off-topic perhaps but I wonder whether people in prison can file patent applications, and whether this is discriminatory.

Anonymous said...

My firm refuses to hire anyone who didn't go to Oxford. And rightly so!

Anonymous said...

Sometimes in France there are some very interesting debates about terms used in the statutes such as "homme du metier" (does it include "femme du métier" ?). Very veerrry interesting.

Ron said...

An Edwardian edition of (I think) Frost on patents mentioned that the UK patent office made no investigations into the couverture or sanity of applicants, and would therefore grant patents to married women and lunatics.

This is to be viewed in the context of the then-recently repealed law which had formerly prevented a woman from holding property in her own right when she married.

Anonymous said...

Looking for something to discuss at the upcoming IP event for women attorneys? Someone should ask what else the participants have in common apart from being female. Methinks they have lot more in common with males in the profession than females from the majority of UK backgrounds.

Anonymous said...

The topic has inspired a little variation of a French famous one: "God protect me from female movements, I'll take care of my enemies”.

Anonymous said...

Belated reply, but I think Saudi Arabia might subtly discriminate against women and non-Muslims.

Also, if this is for an article, please remember that law is just not black letter law. In reality, a Saudi Arabia cannot even walk across to the patent office without her husband's permission.

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