This is a guest post by Allison Tait, a Gender Equity and Policy Postdoctoral Associate with the Yale Women Faculty Forum, who has previously posted on Written Description. A few comments from me follow below.
Dan
Burk wants to find out whether or not patents are gendered.
Since everything from Happy Meal toys to energy
bars and tool kits
can be gendered, a reasonable feminist would not be surprised to find that
patents are in fact gendered. The real question is how they are gendered.
The bulk of Burk’s argument focuses on the ideas
of utility and obviousness, analyzing the idea of the “person having ordinary
skill in the art” (PHOSITA) and how it may be gender coded. He reads these standards through the lens of
Catherine MacKinnon’s work on objectivity – discussing how objectivity is
constructed and manipulated by a patriarchal culture. Burk’s standard-bearer
for this type of false or biased objectivity is the “Winslow tableau,” which formulates the obviousness test and which Burk
suggests can be defined by its gendered “sense of isolation, the prior art
omniscience, the rarified mental activity.” The passage from In re Winslow
goes like this:
[P]icture the inventor as working in his shop with the prior
art references . . . hanging on the walls around him. . . . what applicant
Winslow built here he admits is basically a Gerbe bag holder having air-blast
bag opening to which he has added two bag retaining pins. . . . Winslow would
have said to himself, "Now what can I do to hold them more securely?"
Looking around the walls, he would see Hellman's envelopes with holes in their
flaps hung on a rod. He would then say to himself, "Ha! I can punch holes
in my bags and put a little rod (pin) through the holes. That will hold them!
What this tableau showcases is not, however, a
sense of isolation but rather a sense of a scientific community – one that
happens to be historically masculine.
The inventor is not alone in his shop; rather the ghosts of inventors-past
surround him, male colleagues on whose shoulders he stands as he heroically summons
invention. Knowledge is collective and
cumulative, an accretion of male education, experimentation, and exclusivity.
Patents are also gendered because of the low
number of women engaging in relevant, high-level scientific work due to
multiple factors, gender discrimination among them. While the Winslow inventor
had a shop filled with tools of the trade, women scientists on university
faculties may not be so lucky. An internal MIT study
from 1999 reported that women faculty members had
smaller office and lab space than male colleagues, less equipment, and less
access to institutional resources. More recent studies done by the AAUW
and other
universities have confirmed the unequal position of women
in top faculties, particularly in the sciences.
The pay gap has been as persistent, if not as gaping,
as the patent gap; and these gendered political economies have created gendered
intellectual standards, science, and scholarship. While Burk would like to
separate gender realities from gender theory, the two are not so easy to
disentangle. The marginalization of women scientists continues to
inform the framework of feminist theory. What is interesting, however, is to
speculate about the kind of patents we will see when women scientists reach
parity and have the luxury of large shops of their own.
Tan's comments:
Unlike academic papers*, patent filing is primarily driven by economic concerns (i.e., to make money). Given this, I wonder if patents filed by women would really look much different from those filed by men.
Burk lists some potential results (section IV.B) of adjusting the characteristics of the PHOSITA away from isolation and toward community. These results generally lean toward making it more difficult to get or use patents (e.g., having more inventors, recognizing how nature impels invention, concomitant responsibilities that attend patent rights). This raises the question (as Burk also does) of whether the patent system can even be sensibly modified as Burk describes, or whether the entire patent system irreparably "reflects an unhealthy patriarchal drive toward domination of resources."
*Although academic papers can certainly lead to financial benefits (e.g., more grants/funding, better tenure or career opportunities, etc.)
Tan's comments:
Unlike academic papers*, patent filing is primarily driven by economic concerns (i.e., to make money). Given this, I wonder if patents filed by women would really look much different from those filed by men.
Burk lists some potential results (section IV.B) of adjusting the characteristics of the PHOSITA away from isolation and toward community. These results generally lean toward making it more difficult to get or use patents (e.g., having more inventors, recognizing how nature impels invention, concomitant responsibilities that attend patent rights). This raises the question (as Burk also does) of whether the patent system can even be sensibly modified as Burk describes, or whether the entire patent system irreparably "reflects an unhealthy patriarchal drive toward domination of resources."
*Although academic papers can certainly lead to financial benefits (e.g., more grants/funding, better tenure or career opportunities, etc.)
