Thursday, May 5, 2011

Kara Swanson: Feminism, Corsets, and IP

This is a guest post by Allison Tait, a Yale 3L with a Yale Ph.D. in French literature. Allison writes about women's property and marriage regulation and is the former Editor-in-Chief of the Yale Journal of Law & the Humanities.

What do feminism, the corset, and intellectual property have in common? Quite a bit, it turns out, according to Kara W. Swanson (Northeastern Law) in her latest paper, Getting a Grip on the Corset: A Feminist Analysis of Patent Law. For Swanson, feminine interventions in patent-protected technology converge in the corset. The corset involved women as both consumers and litigants. The corset constructed gender by shaping the feminine form into a graceful silhouette with a small waist. And the corset narrated gender by calling into question the divide between public and private in Egbert v. Lippmann—the 1881 “corset case” that provided a foundational examination of the public use doctrine. The case turned on the question of Francis Lee Barnes’ right to her deceased husband’s patent for an improvement in corset springs. Problems abounded for Francis because the Court cast her as a public woman at a time when the public space of the market belonged to men and the private sphere of domestic relations to women.

Samuel Barnes had given the steels to Frances when they were an unmarried couple (giving multiple meanings to the Court’s finding that Samuel “slept on his rights for eleven years”). Because determining that the transfer was a private gift would have meant recognizing an inappropriate intimate ordering, the court went “public” and considered it as a simple sale. This move put Frances squarely in the public realm of commerce rather than the private one of household relations. Frances compounded the Court’s vision of her as part of the public sphere by actively pursuing her right to the patent, by being a forthright businesswoman, and by “seeking power over her own economic destiny.” Operating in the wrong sphere – being a public woman, in all senses – meant the failure of Francis’s claim. “Getting a grip on the corset gives us a grip on gender,” Swanson says. The same might be true of other female-targeted technologies – maybe another way of thinking about the gendering of public values in relation to private technologies is to remember that two years after Egbert, in 1883, Dr. Joseph Mortimer Granville patented the first electromechanical vibrator.

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