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.”