Dan Burk: Do Patents Have Gender?

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.)