IPR good for minorities USPTO proves ---Patents good

In 2019, Chinese entities were the fourth-largest group using the U.S. patent system,28 dramatically increasing their filings by 93% over the prior ten years.29 This increase has largely been attributed to China’s patent subsidy program and the national and provincial-level financial support provided to putative inventors.30 For several years, Chinese patent applicants could receive a wide variety of incentives for developing inventions and filing for patent protection. Incentives could be monetary, such as payment of filing fees and payments to inventors, and non-monetary, including reduced prison sentences for convicted criminals. Not surprisingly, these policy interventions opened a floodgate of patent application filings by Chinese residents.

So what is the United States to do in response? Fight back, and deploy our secret weapon: women and underrepresented minority group members who can be drawn into the inventor ranks. Our nation is now attempting to activate and deploy that weapon in the battle for innovation supremacy.

The problem is that these group members face historical and continuing barriers to patenting from a variety of causes and in varying forms. The U.S. government seeks to identify and address those causes, with the recent draft of the strategic plan for the USPTO having as its primary goal to “[d]rive inclusive U.S. innovation and global competitiveness.”31

The SUCCESS Act (Study of Underrepresented Classes Chasing Engineering and Science Success Act of 2018) required the USPTO, in conjunction with the Small Business Administration (SBA), to prepare a study on the number of patents applied for by women, veterans, and minorities; this would use publicly available data, as the USPTO does not collect demographicdata.32 The resulting USPTO study reported that innovation in the United States is highly concentrated, with vast swaths of our population not fully participating.33 A different study in 2018, led by Alex Bell, of more than one million inventor-patentees shows that, among women, minorities, and individuals from low-income families, there are many “lost Einsteins”—i.e., high-ability individuals who would have contributed valuable inventions had they been exposed to invention and innovation as children.34 The findings indicate that increasing the rate of invention by members of these underrepresented groups could quadruple the total number of inventor patentees in America.35

Many barriers to inventing or patenting for women and underrepresented minorities in America are not new; they stem from long-extant discriminatory stereotypes that serve to hinder progress for individuals and the country as a whole. The 1857 Dred Scott decision that Blacks [black people] were not citizens36 was the basis of a U.S. attorney general opinion, the next year, concluding that Blacks [Black people] also could not be inventors on patents and that the persons who enslaved them could not claim ownership of the enslaved person’s invention via the patent system.37 The 1858 matter involved the invention of “an enslaved African American man named Ned [who had] invented an improved ‘double Cotton Scraper, and two plows.’”38 The novel and valuable machine could speed up the process of preparing fields for planting.

Although the legal effect of the Invention of a Slave decision was shortlived, its impact in facilitating a belief that African Americans could not invent was and remains detrimental. In her brilliant article, Race and Selective Legal Memory: Reflections on Invention of a Slave, Professor Kara Swanson notes how Black activists, over many decades, have sought to bring to light the inventions of Black and brown people in the face of a persistent myth of innovative and intellectual inferiority.39

Citing a Black patent examiner, Henry Baker, who collected evidence of patents granted to Blacks [black people], Professor Swanson wrote: “In 1913, Baker noted that although his list of nearly 400 African American patentees sat in a book on the shelves of the Library of Congress, a candidate for Congress in Maryland, fighting a ‘hotly contested’ election, had recently asserted ‘that the colored race should be denied the right to vote because . . . “no one of the race had ever yet reached the dignity of an inventor.”’”40 This trope was used to justify white supremacy and to support, as proof of Black inferiority, the assertion that African Americans could not invent, despite voluminous evidence to the contrary. Swanson also noted the lofty symbolism of patents in this country as an indicator of American might and exceptionalism and even of citizenship, such that the results of being excluded from or having reduced access to the benefits accruing from patents can be profound.41

The USPTO’s efforts in this area are not just diversity for diversity’s sake. Real national competitiveness issues are driving this push, in addition to equity, inclusion, and social justice concerns. A 2015 McKinsey report on 366 public companies found that those in the top quartile for ethnic and racial diversity in management were 35% more likely to have financial returns above their industry mean and that those in the top quartile for gender diversity were 15% more likely to have returns above their industry mean.42 In a 2012 global analysis of 2,400 companies conducted by Credit Suisse, organizations with at least one female board member yielded higher return on equity and higher net-income growth than those without any women on the board.43

But does that matter for inventing? Yes. The data clearly show that R&D follows power—or at least money.44 For example, companies direct their efforts to diseases that affect wealthy people, even though more disability-adjusted life years are lost to infectious diseases than to cancers.45 Similarly, we may be underproducing certain inventions because those with the greatest incentive to find solutions are not engaged in innovation.