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I have attempted to investigate the multiple ways feminist perspectives might be applied to intellectual property. Women who identify with feminist thought may take any number of positions on the issue of intellectual property, from endorsing a system that protects the authorial autonomy of women, or, by contrast, offering a critique of the underlying assumptions of a property discourse founded on a masculine construction of knowledge. While work has been done on the history of authorship and the ways women were either ignored and/or used to define the boundaries of literary texts, much less has been done on the contemporary state of authorship from a feminist perspective. Additionally, there is a need for a more direct feminist interpretation of the growing case law on copyright, patents and trademarks.156

Feminism can provide a study of intellectual property with both a different viewpoint on the law and a method for articulating a different process. The alternatives grow from the case examples of women’s creativity—quilting, knitting and feminist publishing to name a few. These examples suggest that whether “natural” to women or not, a different relationship to creative work can be articulated from a feminist perspective. This is an approach that recognizes collaboration as much as individual contributions, recognizes that the author (of a quilt, dress or book) and the reader/user form an important relationship often based upon mutual respect, recognition, and care, and that there is no need to construct a definition of literature or “high art” premised upon reactive boundaries that declare what good work is not—the work of women. A feminist perspective works at the foundation of the legal system by changing the assumptions upon which much of the law is based. Thus, there would ultimately have to be changes in the law that would reflect changes in the underlying social structure.

Some intangibles can be owned. Some cannot. Decisions about the scope of protection are usually described as the outcomes of economics, special interest politics, or history. Economic relationships, special interest groups, and political power, however, have long been dominated by men. Furthermore, economic efficiency through individual ownership is an inherently male approach to the world, especially when the central prong of ownership is the right to exclude others. The history of intellectual property is a history of expansion of both the subjects protectable and the rights given individuals over their property. Nevertheless, a few res are not yet protected, at least in the United States. In copyright, the most prominent are clothing, food, and folklore. In patent, the most prominent are one's own body and traditional knowledge. Also unprotected is the general right to share in what shapes the community, the public domain. This article argues that all of these exclusions are gendered in an anti-feminist manner. One might argue, however, that modern changes to the United States copyright regime are pro-feminist. The Copyright Revision Act of 1976 moved the general line of protection from the point of publication to the point of fixation.' In combination with the Berne Implementation Act,2 it eliminated most of the prior need for copy- right formalities. These changes eased individual access to federal copyright protection, including access by women. This increased ease of protection, however, detracts from the feminization of the

legal world by undermining the public domain. The seeming contradictions in this introduction rest on the multiple dimensions of the terms 'gendered' and 'anti-feminist.' Participants in a struggle for betterment commonly differ not only on how to theorize their struggle, but also on whether to focus on the short term goal of improving living conditions or on the long

The Lanham Act Does Not Provide Tools for Addressing Sexist Trademarks

Trademark law does not offer any legal tools for addressing misogynistic trademarks. This was made clear through extended trademark litigation concerning the registrability of racist trademarks. In the Harjo v. Pro Football series of cases, the validity of several “redskins” trademarks was challenged because “redskins” is unambiguously a racial slur.76 In 1992, a group of Native Americans filed a petition to cancel Redskins marks associated with the Washington Redskins NFL team.77 The Harjo plaintiffs argued that the marks were disparaging to a substantial composite of Native Americans in violation of Section 2(a) of the Lanham Act, which prohibits registration of a mark that “may disparage” persons or “bring them into contempt or disrepute.”78

Some insights may be gleaned from discussions over authorship in copyright law. Responding to the Enlightenment notions of individual authorship, some legal scholars concerned about gendered social relations suggest more robust notions of authorship. In her examination of slash fan fiction, Sonia Katyal, a U.S. legal scholar, argues for recognizing creative works as dynamic authorial performances where normative narratives within a text are coded and re-coded.228 This would open up possibilities for female authorship to offer alternative readings of a text by interrogating normative gender categories.229 Additionally, Carys Craig, a Canadian legal scholar, re-imagines the author as participant and citizen, rather than origin or source of a creative work.230 She argues for notions of authorship emphasizing formation of identity as connected to both self and community.231 According to Craig, copyright law should embrace a notion of authorship that encourages creativity, exchange, and relations with others.232 These more fluid notions of authorship are also appealing for rethinking inventorship and crafting a broader notion of the public domain. Moving away from inventorship as the original moment of conception would help justify demands for more fluid exchange of ideas in the public domain and less restrictive IP policies to enable such cultural borrowings. Broader conceptions of inventorship also open up possibilities for recognizing multiple forms of knowledge production. When inventorship is valued as dynamic, collaborative, and linked to community, it generates space for new forms of knowledge production to be recognized and valued. This would entail going beyond naming indigenous peoples as “joint inventors.”

Technological bodies behave as texts that speak about the material practices applied to them. The discourses of biology, medicine, and technology have been usually seen as guarantors and producers of “true” knowledge, which makes them very difficult to challenge or discredit. The human body has thus been historically constructed by the gaze. Michel Foucault highlighted how the body had been configured by medical discourse and particularly by “the loquacious gaze of the doctor” (Foucault, The Birth of the Clinic xi). In tune with the Foucaltian notion of biopower, or “technology of the self,” Braidotti’s critical formulation of “organs without bodies”— a reinterpretation of Deleuze and Guattari’s “bodies without organs”—gives full expression to the manipulation of women’s bodies under the auspices of the medical profession, particularly the female organs of reproduction or the use of plastic surgery. These issues arise in Salt Fish Girl. Lai’s dystopian fantasy offers a bleak picture of contemporary society, menaced by environmental waste and by the spread of a contagious illness, the “dreaming disease.” The benefits of technology are restricted to the suburban ideal of Serendipity, but its control extends to the depressed Unregulated Zone, which remains under constant state surveillance by means of government officials such as Miranda’s father, a tax collector who uses virtual reality to prevent crime. Miranda’s “original sin” is to interfere with technology, by manipulating her father’s Business suit, a breach for which the whole family is expelled from Edenic Serendipity (Salt Fish Girl 32). Miranda is among those afflicted by the dreaming disease. Since birth, her body emanates a pungent smell of cat-pee and pepper, fishy and stronger than mother’s milk (48). Her reeking body resists classification and “unsettles” the status quo: she is a woman, of Asian descent, who has been conceived by unusual means, which comes to represent the inability of the system to keep unruly bodies under control (Lee 94–95). The diseased bodies of Serendipity participate in a silent revolution that warns the medical and economic establishment against the material presence of the abject other and the unsubtle menace of the return of the repressed. Memory-traces and the sense of smell are thus connected by Lai in her fiction “in a very emotional, intimate kind of way [: : : and in] a history that has been largely unwritten and is in the process of being forgotten” (“Future Asians” 172). Activated by the sensory organs, memory is the physical inscription of history that relates racialized women’s lives to their past.3 In her novel and in Winterson’s, women and cyborgs, whose testimonies constitute a “site of resistance,” are in charge of the task of preserving memory. That is why among the effects of Miranda’s syndrome are the dreams in which she evokes the “memories of a muddy river,” after which she starts drawing her dead mother as a sea serpent (Salt Fish Girl 186), in due reference to the serpent goddess Nu Wa. The image of Miranda’s “rebirth” at the end of the novel precisely fulfills what Haraway and Braidotti have termed the desire or the fantasy of being “at the origin of oneself” (Braidotti, Nomadic Subjects 66), so accurately exemplified by the posthuman figuration of the cyborg.4 In order to cure her “disruptive body” (Lee 94), Miranda’s father tries different remedies, including going to a Chinese herb shop in the Unregulated Zone. Finally, he takes her to visit a geneticist of repute, Dr. Rudy Flowers, whose use of biotechnology is regarded by his fans as the “new language of God” (Salt Fish Girl 76). In his clinic, Miranda’s body turns into a worthy object of research, and her coxndition is diagnosed and verbalized for the first time. Only then does the girl learn to bear the mark of shame, as she confesses, “I was shocked. Suddenly, and for the first time, I felt dirty. I felt the shame my father had felt since he had first plucked that dangerous fruit” (72). She is both Eve’s daughter and the posthuman monster in Braidotti’s formulation: “the bodily incarnation of difference from the basic human norm” (Nomadic Subjects 78). The memory disease is the motif that undermines the logics of the body/mind dichotomy in Lai’s novel, as it also breaks the boundaries between different species. The quick spread of the infection is due to pollution and the genetic manipulation of natural resources: They theorized it might be the product of mass industrial genetic alteration practices— that the modifications of agricultural products in recent years had contaminated the soil, that the microbes that lived in the earth were mutating and infecting humans. That humans could get diseases once only possible in plants, or that indeed, the new disease was a strange hybrid, combining those that affected plants and those that affected animals. (Salt Fish Girl 102) People are infected with bacteria that give them the memory structures of other species. Furthermore, the intensification of some of the senses leads directly to the unconscious activation of memory. Miranda’s illness, as well as her inherited hybrid nature, can be interpreted at the same time as the result of violence—exerted by the invisible forces of capital and racist ideology as they erase difference and try to impose class and ethnic homogenization—and as the rebellion of posthuman bodies such as Miranda’s against those very forces. In the overly technological Serendipity, bodies are the focus of attention. Corpses are dissected on television by Dr. Flowers, who is seen as a new messiah, and bodies in which difference is visibly inscribed are subjected to scientific scrutiny and experiment. Miranda’s oozing fistulas are variously read either as Freudian wounds or as the mouths of the faithful “opening to accept a holy wafer” (113). As one of Flowers’ followers explains to Miranda, “[t]he body is the language of the Third Testament” (76).

Artificial intelligence () is set to change the world. It’ll upend society and reshape the way we work and interact. But how it’ll impact humanity depends on your gender.

AI researchers are warning that the current revolution in technology could disproportionately impact women more negatively than men because of a raft of different reasons, from who is employed by the big tech companies leading the way and the datasets the technology is trained on.

Moving to Winterson’s The Stone Gods, we find that body technologies pervade the daily existence of the privileged in the extremely polluted planet Orbus. They basically rely on the preeminence of “visualization technologies” (Balsamo 57) to articulate a gendered appraisal of the body, sanctioned by the male gaze and propitiated by medical science. In the twenty-first century, Orbus has been long exhausted of natural resources, and Billie Crusoe works for Enhancement Services, controlled by the Central Power and gradually by MORE-Corporation, marketing Genetic Renewal for both sexes, though affecting women’s lives more drastically (Stone Gods 9). Women are subjected to a strict bodily Foucauldian “discipline of power” in Winterson’s dystopia, a practice promoted by mass media and the state. In this context, they submit willingly to a selfdiscipline that actually turns into physical and mental punishment. Men are usually fixed as being in their late forties, while all mature women look like Lolitas. Female bodies are subordinated to fashion, technological reshaping, and manipulation, to the extent that “the female body has nowhere to go” (Braidotti, Metamorphoses 233). And yet Orbus women comply with it while men go unscathed, mirroring the situation of gender injustice enacted in capitalist societies (Bartky 42). Contrary to Lai, who supports in her novel the need to return to nature, Winterson does not offer a negative appraisal of technology but rather of gender exploitation; she only resents the manipulation to which women’s bodies are subjected in the enactment of the “organs without bodies” refrain. Billie Crusoe is the privileged observer of the exhaustion of an old world and is meant to inaugurate a new one on Planet Blue, following the example of Defoe’s homonymous character. In the space expedition to Planet Blue, Billie travels with Spike, the first Robo sapiens, designed as the perfect Eve for the male astronauts’ solace during their long space travels, an object of consumption (Stone Gods 28) whom Billie rescues when her memory bank was about to be drained by the Corporation. Spike represents the latest technological achievement, yet her humanoid features not only make her resemble an ideal of femininity but also turn her into a slave for men, both as a highly qualified worker and as a sexual fantasy. Her subjection mirrors women’s subjugation throughout history and reinforces their association with technology. Plant’s formulation could also be applied to this case: “Women have been trapped by economic dependence on men as surely as robots are controlled by the implicit threat that their masters can always cut the power supply, turn the on-switch off, leave or put them back on the shelf” (Zeros and Ones 105). Spike’s perfect beauty also fits in with MORE’s ambitious project about cosmetic surgery and fixing in Orbus. Her example testifies to Balsamo’s contention about “the persistence [: : :] of gender in a postcorporeal world” (29). She is regarded by men as a beautiful woman, which leads us to conclude that femininity is visually and bodily constructed, even in futuristic settings (Balsamo 29–30). The extended use of cosmetic surgery, which vilifies and denigrates women’s bodies, and Spike’s ideal of perfection are the result of Winterson’s renewed interest in corporeality. If in previous novels she created fantastic bodies that defied the control of patriarchy and of normative heterosexuality, in The Stone Gods she imagines how authority is exerted by a naughty cyborg.5 The misfits of Wreck City resemble very closely the inhabitants of the Unregulated Zone. In Winterson’s futuristic society, they are outcasts who are rendered inadequate and who are made either to conform to the norm or to live as ex-cits, or ex-citizens. They add to the growing numbers of the Unknown, among them the toxic radioactive mutants, who still speak for the human in a dehumanized world: “Coming in on all fours, coming in on crutches made from rotten forest wood, coming in ragged, torn, ripped, open-wounded, ulcerated, bleeding, toothless, blind, speechless, stunted, mutant, alive—the definition of human. Souls?” (Stone Gods 195). Lai and Winterson’s novels denounce the risks societies run in misusing technology. In them, the scientific establishment is complicit with great corporations and the state to control individuals, and to perpetuate their manipulation of women’s physiology and their lives. In Salt Fish Girl, disease is a symptom of the system’s internal corruption, and bodies rebel against homogenization and forgetting. In The Stone Gods, Orbus has fallen prey to the tyranny of the gaze and constructs otherness on the basis of sexual and social prejudice. In light of Haraway’s conceptualization of the posthuman, we see that both novels invite readers to discredit either/or categorizations and to challenge neat definitions of identity, bridging the gap between the pure and the abject, and the human and other forms of subjectivity. These issues are discussed below.

As should be apparent from the discussion up until this point, the objective PHOSITA standard in patent law shows considerable consonance with the issues identified and analyzed in feminist scholarship on law and on science. The PHOSITA, not surprisingly, displays many of the characteristics criticized by Bender in her evaluation of tort law’s objective personification of a legal standard.115 As depicted in the Winslow tableau, the standard fosters a view of innovation that is detached, isolated, and divorced from the community. That insight might be pursued yet further, applying insights generated by MacKinnon, Haraway, and other commentators, to query whether the ostensible objectivity or neutrality of the PHOSITA standard is masking social biases and power relationships.

Indeed, a little investigation reveals that the PHOSITA, like the reasonably prudent person, is a relative latecomer to its ostensibly genderneutral designation. The PHOSITA became a “person” of skill only quite recently. Older cases discussing the obviousness standard refer to the “skilled man,” and indeed this terminology is still current in the patent systems of other industrialized English-speaking countries.116 This suggests that we might ask regarding the PHOSITA, as Bender does in the case of tort law’s reasonably prudent person, whether the original, gendered designation of the legal standard may be revealing with regard to an underlying practical bias. We might also wonder whether the switch to less gendered terminology in fact makes any difference to the underlying assumptions of the standard. If the biases in science and other “objective” practices are found in the PHOSITA, then the arguments we have reviewed thus far regarding objectivity have direct implications for the patent system that harbors the PHOSITA.

Bender is not alone in her assessment of the purportedly neutral, dispassionate, objective legal standard. Other commentators have also critiqued legal objectivity, arguing that other legal standards are closely tied to “masculine” themes of dominance and subordination. In this essay, I do not propose to review neither all of these standards, nor all the debates against (and among) them. However, I will touch on one of the most prominent and influential critiques of legal objectivity, which has been offered by Catherine MacKinnon.68 MacKinnon’s work has a direct bearing on feminist critique of objectivity outside of law, tying the debate in law to that in other disciplines, including the question of objectivity in science.

MacKinnon draws a direct correlation between objectivity and objectification; she has argued that “to look at the world objectively is to objectify it.”69 To view something objectively is to view it as having by its nature certain characteristics.70 Frequently, the “natural” characteristics of the object that are foregrounded by the observer are those that are useful to the observer.71 The objective stance thus allows the observer to attribute to the object the attributes desired by the observer.72 Here, the objective trope of distance and of neutrality becomes important; the purported separation of objectifier and object allows the objectifier to assert detachment, and therefore impartiality, when observing the attributes of an object.73 The character attributed to the object is therefore asserted to be its innate and natural character rather than that projected by the observer.74

On a different level, the critique of objectivity might raise the concern that the patent system fosters a certain type of intrinsic deception about the characteristics of the subject matter that it encompasses. I have suggested in previous work that the patent system in fact encompasses a highly stylized view of nature and the natural, a dualist view that is readily exposed by the critical tools of feminist analysis.122 MacKinnon might suggest that such objective distortion creates a kind of self-serving delusion regarding technology, that the epistemic structure of the patent systems attributes to machines, manufactures, processes, and compositions of matter a nature that comports to the needs and desires of those innovators who hope to exploit such inventions.123 Thus, it may be that the criteria for patentability, and the process for vetting those criteria, recognize only those aspects of materiality that lend themselves to technological exploitation and control, effectively projecting onto patentable subject matter the attributes necessary for domination by means of a patent. In this case, the patent system may not only be overlooking “feminine” technologies, but also actively promoting technologies that facilitate and reinforce current social hierarchies, including gender hierarchies.

At a heightened level of concern, the critique of objectivity could lead us to question the current purposes of the patent system itself. The patent system is generally justified as intended in some fashion to promote technological innovation, but it may be that the desire to do so reflects an unhealthy patriarchal drive toward domination of resources, both material and social.124 The patent system might be working well, or it might be working poorly in promoting innovation,125 but we might be concerned that even if it is working “well” in the sense of promoting technological innovation, it is in a different sense working poorly because technological innovation is simply a bad idea. To the extent that technological innovation translates into accelerated and expanded means of consumption, we might be concerned that promoting technological innovation effectively means promoting environmental disaster, social disparity, materialism, and personal alienation. Certainly much, perhaps most, of the innovation found in the history of the industrialized world seems to entail these kinds of harms.

As studies have shown, women often have trouble raising money to patent and commercialize their inventions. Companies founded solely by women received just 2.2 percent of venture capital funding in 2017.29 Women also often play invisible roles in research because their names do not appear at the top of a final paper, regardless of the significant contributions they made to the research project. These are just two examples of obstacles that women face to full participation in inventive pursuits.30

Both observation and empirical research show that fewer women than men are inventors; fewer women than men are patent holders; fewer women than men are patent agents and patent lawyers; and fewer women than men are patent examiners, patent litigators, and judges in charge of patent cases, for example United States District Court judges, and US Federal Circuit judges.31

Bender is not alone in her assessment of the purportedly neutral, dispassionate, objective legal standard.

Other commentators have also critiqued legal objectivity, arguing that other legal standards are closely tied to "masculine" themes of dominance and subordination. In this essay, I do not propose to review neither all of these standards, nor all the debates against (and among) them. However, I will touch on one of the most prominent and influential critiques of legal objectivity, which has been offered by Catherine MacKinnon.68 MacKinnon's work has a direct bearing on feminist critique of objectivity outside of law, tying the debate in law to that in other disciplines, including the question of objectivity in science.

Patents are platinum-level intellectual property rights. They are the most expensive to obtain and provide their owners with the strongest limited monopoly, albeit for the shortest period of time. Patents send a signal that the product is new and innovative.59 Inventors and entrepreneurs apply for patents to protect their investments in commercializing their inventions.60 Patent ownership is also an important defensive asset to protect against competitors locking up technology.61 Owning patents also increases the likelihood of obtaining investment funding.62 The USPTO does not collect demographic information for inventors. Nonetheless, the presence of inventor names makes it possible to cross reference other datasets. Using this method, empirical scholarship has revealed significant underrepresentation by race and gender. Research has repeatedly shown that women have less access to patent protections than men. Study after study, including a comprehensive 2016 World Intellectual Property Organization (“WIPO”) analysis of international patent application patterns, has shown a sizeable gender gap in applications, grants and ownership of patents.63 Less than 30% of international patent applications list a female inventor, and fewer than 5% list only female inventors.64 Patented technologies invented by women have been shown to be comparable in quality and impact to those filed by men.65 Nonetheless, patent applications filed by women were more likely to be rejected or confront an obstacle in the application process, and their rejections were less likely to be appealed.66 Patent applications naming female inventors are 21% more likely to be rejected by the patent office than those identifying men.67 Examiners allowed fewer claims in women’s patents and narrowed the claims in scope and value.68 Finally, patents granted to women are less frequently cited and less likely to be maintained by their assignees.69 This gender gap has consequences. Given the value of patents to technological advances and entrepreneurship, this gap presents an obstacle for women in commercializing their innovations. Empirical studies suggest that the patent gender gap may stem in part from bias during the USPTO examination process.70 This research shows that gaps in patent grant rates were more pronounced when applicants’ names were easily recognizable as feminine.71 After analyzing more than 3.9 million U.S. patent applications, an empirical study found that applications filed by women are less likely tobe granted than those by men.72 ctice.73 The nebulous “PHOSITA” (“Person Having Ordinary Skill in the Art”) standard for enablement and non-obviousness in patentability is subject to cultural biases and assumptions about who is skilled in a given art.74 Likewise, what counts as patentable subject matter depends on what counts as an “invention,” “technology,” and “industrial application,” categories that may be less charitable to inventive contributions in fields dominated by women.75 Female inventors face additional hurdles in accessing the patent system. Prosecuting a patent application successfully requires access to a patent agent and a substantial investment of time and money.76 Women tend to have fewer financial resources and less access to venture capital or other funding.77 Women lack equivalent professional networks and other support structures that can aid them in navigating the patenting process.78 Sexism from peers, industry contacts, customers, and even patent examiners also plays a role in whether women perceive their own work as patentable and whether others perceive that work as important.79 In sum, substantial research documents why women secure patents far less frequently than men. Race and ethnicity have received less scholarly attention than gender, but nonetheless, multiple studies confirm racial underrepresentation in patent prosecution. Lisa Cook and Chaleampong Kongcharoen examined patenting patterns and identified just over 1,000 African-American inventors from a pool of approximately 1.2 million U.S. inventor names.80 Consistent with this finding, a recent study by Schuster and his co-authors shows that minority inventors are less likely to secure patents compared to other applicants.81 Additional studies add interesting nuances. The Institute for Women’s Policy Research found that Asians were most likely to have applied for a. patent, while Hispanic and Black inventors were the least likely.82 Applications by inventors of color were also less likely to be granted, particularly among women.83 These studies suggest that further research should be conducted to confirm these patterns and determine how race and gender-based obstacles can be eliminated.

Women were the original computer programmers. Women programmed the ENIAC, the first programmable, electronic, general purpose computer. Women implemented the design to convert that computer into the first stored program computer. And a woman wrote the first compiler program. Despite these many programming firsts, the patent often recognized as the first patent for a computer program, or “software,” was granted to a man. While many argue that the waters surrounding the patentability of computer programs are murky even today, the history of computer programming and patents makes clear that judgments about what activity results in patentable subject matter is tied to gendered values society places on different types of work. When women were doing the work, programming was viewed as drudgery, merely the use of a machine, not the innovation or creation of technology that the patent system is designed to reward. As computer programming was professionalized and masculinized, that assessment was reversed, suggesting that at least in the history computer programming, to a large extent gender has determined who gets to invent. Fundamentally, patents grant an economic right: the right to exclude others from making, using, or selling your invention for the term of the patent. If those rights are violated, patent holders are entitled to monetary damages. But patents are important for other reasons. Patents are used to measure the innovation taking place in society. To many they represent ingenuity, creativity, autonomy. Patent holders list their patents on resumes. In computer programming as in any other industry involving patentable technology, patents influence hiring, determine pay, and impact promotions.1 Indeed, patent counts have been used as a proxy for “meaningful participation” in the computing field.2 On the law’s surface, society’s reliance on patents to measure and reward innovation should present no problem for women because patent law appears to be gender neutral. The patent statute lays out the requirements for a patent. New and useful processes, machines, manufactures, or compositions of matter, as well as any new and useful improvements are inventions entitled to recognition and exclusive rights.3 In contrast to these requirements on the subject matter of an invention, patent law has minimal limitations on who can invent. An inventor is simply an “individual” who invents.4 There are no other qualifications. The Federal Circuit Court of Appeals, the federal court that hears all patent appeals, recently decided that an inventor must be human, but that is an undeniably low bar.5 So, if the system works according to the text of the law, whether the subject matter of any particular activity is judged to be an “invention” and worthy of a patent should depend on the subject matter that the activity produces not on who performed the activity. However, the parallel histories of the computer programming profession and patents demonstrate that patent law is far from agnostic with respect to the gender of those who engage in inventive activity. The subject matter of patents both reflects and perpetuates society’s judgments about the nature and the relative value of the work that women do. In the early days of computing, women were recruited to program computers because they were considered careful and detail oriented, excelling at repetitive and mundane tasks. Women used technology to make their chores easier. Men, on the other hand, were given the opportunity to develop the hardware of computer systems. Men were considered innovators. Men created technology. Men did the work that patents exist to reward and incentivize. The patent system both perpetuated and reflected those faulty assumptions. This chapter takes advantage of the unique history of computer programming as an activity in which the primary gender of its participants shifted at an identifiable moment from almost exclusively women to largely men. Examining this history in parallel with the history of patenting activity sheds light on how patents reflect and perpetuate society’s gendered views of activity as drudgery or innovation. Given the power of patents in the economy and society in general, those working in the patent system should be educated to recognize gendered views of inventive activity, or alternatively patents must be replaced by better measures of innovation in society.

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It is also worth noting that evidence of the first kind of gendering, the explicit or de facto exclusion of women from the patent system, could be taken as evidence of the latter kind of gendering, the masculinization of patent doctrine and patentable subject matter. However, a lack of evidence of the former kind of gendering does not necessarily preclude the latter kind of gendering; women might be participating in the patent system, but under social or epistemological constraints that perpetuate subordinate status.

Feminist scholars have expressed a parallel concern that either the culture or epistemology of science and engineering are hostile to women,25 resulting in relatively few women entering these fields of endeavor, and even fewer succeeding in reaching a point where they can generate then kinds of technological developments that would qualify for a patent. There is certainly considerable evidence that fewer women than men select careers in physical science and engineering,26 and some evidence that those who do select such careers encounter gender-based discomfort in their chosen fields.27 If women generate fewer patents than men, this could simply be a sort of spillover from the paucity of women in science and engineering; if fewer women professionally engage technological innovation, fewer will obtain patents on technological innovations.

Problematic effects of gendering might manifest themselves at several different levels of the patent system. The most obvious effect, and the version that most people would most readily perceive as a problem, would arise if we were to find that the patent system is gendered, either intentionally or unintentionally, in such a way as to exclude women. Such exclusions might include signs of overt discrimination, such as formal or informal prohibitions against participation by women; for example, if women were officially barred from obtaining or holding patents, or alternatively, if women were as a practical matter excluded from obtaining or holding patents because of prejudices or attitudes in the institutions that administer the system. The former type of prohibition might occur if women were, say, statutorily excluded from the patent system. But the same outcome might be reached if the latter were to occur; if for example, patent examiners held a particular view of invention or inventors that inclined them to reject applications from women more often than applications from men.

Historically, there is some evidence of just such prohibitions, periods during which women were discouraged from claiming credit for technological innovation, so that either no patents were sought at all for women's inventions, or if patents were sought for women's inventions, they were done so in the names of the fathers, brothers, or husbands of the actual inventor.22 But it is difficult to find anything so blatantly discriminatory in the present patent system-no statutes or regulations stating that women are forbidden from filing patent applications or holding patents, no statements or overt actions by examiners or Patent and Trademark Office (PTO) officials discouraging women from applying for patents, no formal rules or policies prohibiting women from joining the examination corps at the PTO, or barring them from taking the patent agent's examination. Such formal or informal deterrents, were they found, would clearly constitute violations of current law, subject to formal legal sanctions.

(Paul R. Gugliuzza, James E. Beasley Professor of Law at Temple University’s Beasley School of Law, B.B.A. from the University of Oklahoma, JD from the Tulane University School of Law, expert in intellectual property and patent litigation; Rachel Rebouché, Kean Family Dean of Temple University’s Beasley School of Law, Peter J. Liacouras Professor of Law, BA from Trinity University, LLM from Queen’s University, JD from Harvard Law, “Gender Inequality in Patent Litigation”, https://go-gale-com.proxy.lib.umich.edu/ps/i.do?p=AONE&u=umuser&id=GALE%7CA719644569&v=2.1&it=r&aty=ip) //GB

The bar that litigates patent cases before the Federal Circuit, however, is far less diverse. As the empirical study presented by this Article shows, over the past decade, the Federal Circuit has heard over 6,500 individual oral arguments in patent cases. Women presented only 825 of them, or 12.6%. (4) The usual explanation for gender gaps like that is that practicing patent law often requires a degree in certain technical fields--engineering, chemistry, computer science, or microbiology, for example (5)--in which women have historically been underrepresented. (6) But the notion that careers in patent law are only for those with backgrounds in the hard sciences is increasingly wrong. (7) Patent cases today are handled by the most prominent generalist litigators in the country, including well-known appellate advocates such as Paul Clement, Carter Phillips, and Seth Waxman. (8) Those lawyers have no special background in patent law or technology, but the world's largest companies trust them to handle their most high-stakes patent disputes. Yet, even though the practice of patent law is no longer the exclusive domain of lawyers with scientific backgrounds, the stereotype of the patent bar as overwhelmingly male remains accurate.

Copyright protects only original works of an artistic, literary, dramatic, or musical nature. By requiring such classification, the law would seem to demand at least some basic explanation of what is meant by “art,” what sounds constitute “music,” what symbols, when strung together, might be said to amount to “literary” expression. And yet, copyright juris- prudence is replete with the insistence that no such assessment of the substance of a work is required – the determination of whether some- thing is an “artistic work,” we are frequently assured, has nothing to do with the qualitative evaluation of whether something is good art, bad art, or even a “work of art.”1 As Alfred Yen put it, “the general irrelevance

1 See, e.g., George Hensher Ltd. v. Restawhile Upholstery Ltd. [1976] A.C. 64 (H.L.) 78–9 (U.K.) (Lord Reid stating that “it may be misleading to equate artistic craftsmanship

(Karen, Professor Emeritus of Law at the University of Maryland Francis King Carey School of Law, BA from UC Berkeley, JD from Georgetown, “Gender Bias in the Courts: Social Change Strategies” https://heinonline-org.proxy.lib.umich.edu/HOL/Page?lname=&public=false&collection=journals&handle=hein.journals/geojlege4&men_hide=false&men_tab=toc&kind=&page=1) //GB

Problems identified by gender bias studies fall into three rough categories: courtroom conduct, evidentiary perception, and legal interpretation. In the first category, studies find that male judges and lawyers treat female judges, judicial candidates, attorneys, parties and witnesses differently and worse than they treat males. 15 Responses to the Maryland surveys, for example, indicate women lawyers may be referred to informally, either by their first name or by an inappropriate term, such as "dearie."' 6 They may see their arguments dismissed as unpersuasive before getting a fair hearing.' 7 They may be ignored or treated disrespectfully. 8 Sometimes they are subject to unwelcome sexual joking, advances and even touching by judges and by lawyers. 19 Male lawyers may act hostilely to women who are candidates for judicial appointments.20 They may take advantage of female attorneys and witnesses in the courtroom by subjecting them to inappropriate or demeaning forms of address, argument or examination. 2'

A large body of copyright scholarship over the past twenty-five years has sought to demonstrate the presence of a Romantic conception of authorship in the fundamental concepts, principles, and adjudication of copyright law.35 Martha Woodmansee, for example, has argued that our intellectual property laws are rooted in the “reconceptualization of the creative process which culminated in high Romantic pronouncements . . . to the effect that this process ought to be solitary, or individual, and introduce ‘a new element into the intellectual universe.’”36 What is more, she suggests, these laws are themselves “one of the most powerful vehicles of the modern authorship construct.”37 James Boyle has warned that the myth of the Romantic author causes us to value some forms of creation over others, and to underestimate the importance of external sources in the creative process.38 Mark Rose has decried “the persistence of the discourse of original genius . . . and the reifications of author and work” in copyright law.39 For Rose, what emerged out of the nineteenth century and continues to cause difficulties for copyright law todayis “the [romantic] notion of the author as a creative man who by virtue of imposing the imprint of his unique personality on his original works makes them his own.”40 The distinction between creative (‘productive’) and pseudo-creative (‘reproductive’) imagination is integral to all Romantic theorists of art;41 it is also integral to copyright law and the line that it draws between the original authorship that is to be encouraged and rewarded, and the unlawful reproduction that is to be prohibited. III. The Gendered Author A. The Solitary Self Of course, the reader may say, nothing in this description of copyright’s underlying Romantic aesthetic has any particular relevance to issues of gender or diversity: after all, men have no monopoly on originality. But when it comes to philosophizing about the nature of “mankind” and the ostensibly objective values it entails, feminists have, across decades and disciplines, sought to show how neutral language and “objective” descriptions bear the marks of gender, and so construct hierarchies with gendered significance under the guise of “false universality.” 42 The copyright field is no exception. Such feminist critiques are increasingly being brought to bear directly on the seemingly gender-neutral realm of copyright law to problematize, deconstruct, and potentially transform the way in which its core concepts, doctrines, and perceived purposes are understood and realized.43 One starting point for a feminist critique of copyright’s Romantic aesthetics is to draw the connection between conceptions of authorship and conceptions of selfhood. The authorfigure—this product of the enlightenment era and Lockean notions of self-ownership—is essentially the familiar protagonist of liberal possessive individualism. As Shelley Wright explains: The existing definition of copyright . . . presupposes that individuals live in isolation from one another, that the individual is an autonomous unit who creates artistic works and sells them, or permits their sale by others, while ignoring the individual’s relationship with others within her community, family, ethnic group, religion—the very social relations out of which and for the benefit of whom the individual’s limited monopoly rights are supposed to exist.44 This is an important claim because it opens copyright law to an enormous body of critical discourse ranging from the political to the aesthetic, and from the communitarian to the postmodern. Most apt for our purposes here is the critical assertion common to much feminist political theorizing that this fictional liberal self, with its double-edged claim to individuality and universalizability, disguises difference, disregards social “situatedness,” and so subsumes and perpetuates a history of domination, subordination, and exclusion. I have argued elsewhere that this mythic individualized author is not only profoundly ideological and historically contingent, but also derives from a strongly gendered vision of the autonomous self:45 it truly belongs to what Foucault termed the “fundamental category of ‘the-man-and-his-work.’”46 Feminist and other critical theorists challenge the notion of the subject that underpins this valorization of individuality: the atomized self who transcends society and subjectivity, labors alone, who acquires rights, owns property, calculates rationally, and transacts freely. The core objection is, of course, that “[t]he place of the free-willed subject who can transcend nature's mandates is reserved exclusively for men.”47 If the radically individualized self is the exclusive domain of men, then must not the same be said of the independent, original author at the center of copyright law? The Lockean individual who appropriates through labor by virtue of his solitary efforts, for example, is a foundational precept in Western property systems, and, I have suggested elsewhere, a persistent specter in our intellectual property discourse.48 As Carole Pateman has argued, however, for Locke, “women are excluded from the status of ‘individual’ in the natural condition.”49 The “masculinist underpinnings” of the Lockean premise of self-ownership are thus imported into copyright’s theoretical framework with every invocation of the author’s right to “reap what he has sown” and to enjoy the “fruits of his labor.”50 The well-rehearsed feminist critique of the liberal subject readily extends to the idea of the “homo economicus” or “economic man”51 who dominates copyright’s increasingly utilitarian narratives. As feminist theorists have shown, the universal subject of the neo-classical economic model—the unencumbered subject who makes rational calculations on the basis of self-interest—similarly excludes considerations of human relations, situation, and power. Once revealed, the positionality of the homo economicus (who most closely resembles the privileged white, male, heterosexual elite) suggests that “economic rationales are often merely a way to preserve the patriarchal status quo.”52 Might the same be said when copyright is justified on the basis that authors, cast in the role economically rational actors, create in response to the incentives offered by copyright protection?53