Patent law and intellectual property can be redefined and queer progress within this legal framework is certainly possible.

Rather, the constraints imposed by patent performativity must form the basis for their own reform. Here we turn back to Judith Butler, who shows how the constraints of performative social norms may be turned to resist those same norms. In the context of performative gender, Butler famously offers the example of the [transgender]transvestite, who performs gender transgressively.214 “Drag” performances, according to Butler, appropriate the norms of gender, playing them against themselves to rework the possibilities of gender.215 Such observations point the way to parallel reworking of the social tropes associated with patenting and innovation. Transgressive re-orientation of patent isolation, elitism, hierarchy, dominance, extraction, and exclusivity might similarly expose the performance of inventorship to re-interpretation and open new possibilities for enacting innovation. To be sure, Butler cautions that, at least in the case of gender, enactment remains compelled, constrained, and effectively mandatory.216 Gender is a characteristic on which societies force individuals to take some stance. Even those who adopt non-binary or gender fluid performances must do so with reference to the concept of gender, and to the dominance of masculine or feminine norms. Society is perhaps less exercised with regard to inventorship than it is with regard to gender–one need not necessarily engage with innovation, although it should be noted that the failure to do so in effect takes a stand regarding innovation, by making a choice not to be defined as an inventor. But once the individual actively engages with the role of inventor, the reference points are constrained and largely fixed. The inventor must, for example, by definition be a person of extraordinary skill in the art, because if the invention could be developed by one of ordinary skill, it is by definition unpatentable. The choice to be an ordinary inventor is not currently accommodated within patent enactment. Thus, we cannot expect that the defining tropes of patent enactment can be avoided, but Butler’s analysis suggests that they can be subverted. Performative constraints may be repurposed to mark out a space for greater diversity. We see indications in recent scholarship of how patents might be “queered” in this fashion. Some commentators have begun to question the assumption that the promotion of technical progress is always beneficial.217 Others have challenged the notion of “progress” itself, asking whether innovation may be defined differently than the extractive purposes of current patent policy.218 In the copyright context, Severine Dusollier has similarly argued that intellectual property should be re-imagined as a set of inclusive, rather than exclusive rights.219 Geertrui van Overwalle has explicitly attempted to operationalize such inclusive rights for the patent system, outlining a system for inclusive, rather than exclusive patents.220 Such glimmers of resistance to the existing enactment of patents indicate the potential for defining more inclusive performances of inventorship and innovation.