Discussions surrounding IPR are not neutral but invested in sexism

As a historian of women, technology, and science, I have sometimes made the mistake of thinking of gender disparity in participation in IP systems as old news, noticed and discussed for over a century.33 But what is important and significant, and explored in past symposia, is the extent to which such disparate participation is not merely the stuff of history, but rather current reality. In the early twenty-first century, women are receiving fewer than 11% of patents issued in the United States.34 That is not just a disparity, it is a chasm. Further, research shows that female scientists patent less often than male scientists, even in areas of science where there is near-gender parity in personnel (bioscience) and when researchers attempt to control for other possible causative variables, such as age and institutional affiliation.35 As Dan Burk has been considering, this situation cries out for rectification. Is there something within the patent system itself, in addition to the well-known barriers to women's participation in science, engineering, and technology that is limiting women's participation? Burk is exploring possible "levers" within the patent system that might be pulled to improve female participation.36

What also becomes apparent when one considers the data about women and patenting is that we lack such data, historical or present-day, for women and the copyright system or the trademark system. We know something about the percentage of women executives in copyright-intensive industries,37 and we know, thanks to participants in this symposia and those who built on their work, something about how copyright tends to exclude traditionally female forms of knowledge and creativity,38 but what can we say about copyright registration, copyright infringement claims, and the rate of trademark registration by women-owned businesses?39 This is not old news, but news yet to be gathered.

2. Analyzing the Application of IP Doctrines to Gendered and Sexualized Subject Matter

These symposia have also highlighted the extent to which intellectual property laws are applied in unusual ways when the subject matter involves sex, sexuality, and/or gender. Past participants have identified the legal oddities that occur when courts decide cases involving IP claims and sexuality. Tushnet has tracked the application of the fair use doctrine to sexualizing reuses or derivative works.40 Katyal has looked further, to track differences in decisions when that sexualization is heteronormative or transgressive.41 In a similar vein, Leigh Hansmann has used this perspective to consider the doctrine of tarnishing in trademark law, considering when sexualization is actionable trademark dilution.42 In my own work, first presented at this symposium, I have analyzed the result when the public use doctrine in patent law was applied to the corset as a stand-in for female sexuality.43 As these IP doctrines are constantly in play, both in court decisions and in policy discussions about law reform, keeping this work up-to-date and in the public eye seems crucially important. This area of research seems like one ripe for further work in feminist and queer inquiry.

3. Analyzing IP Doctrines as Gendered

Perhaps the most fundamental work that these symposia have begun is to bring a critical lens to intellectual property as a legal system, mapping not just the connections between IP and gender, but also the ways in which IP perpetuates power hierarchies based on gender and heteronormativity in ways that are so opaque to much of the legal community that simply naming the problem raises anger and requires careful persuasion.44 As more than one participant in these symposia has noted, when it comes to women's ways of creating or knowing - food or fashion in copyright, or tending sick cats as the basis for invention in patents - the expansive doctrines of intellectual property subject matter suddenly narrow, and the definition of authorship and invention are revealed to assume masculinity.45 Facially neutral IP law is not neutral, but imbued with the assumptions of those who wrote it and interpret it, including assumptions about sexual orientation and gender identity. Identifying this problem is a first step toward addressing the problem..

This final category of scholarly contribution brings me to my second axis of analysis, via the classic feminist insight, the personal is political. I want to reflect on my own experience writing, speaking and teaching about IP and gender in order to consider our project for the next ten years, not just in suggested research topics, but also in terms of assessing the value of the scholarship generated thus far in illuminating and communicating the connections between IP and gender to others who use and craft IP doctrines. The audiences created by IP/gender scholarship in law reviews are important, but the scholarly community created by these symposia has and can continue to create more opportunities to foster social justice by reaching other audiences as well.