Patents link

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.

The lack of explicit prohibitions on female participation in patenting might prompt some observers to conclude that there is no cause for worry over gendered patents. If there are no explicit prohibitions, then perhaps there is no need for alarm. However, while much progress as has been seen in other areas of feminist reform such as employment, the removal of explicit discrimination does not necessarily mean the end of all discrimination.23 Although women are no longer explicitly excluded from many professions and workplace positions, they continue to be hampered by prejudicial attitudes and social structures even after new laws removed the explicit barriers to participation in those jobs.

Certainly there remain troubling indicators of exclusion in the patent system. It is fairly clear that women obtain fewer patents than men; in addition, there are fewer women than men in the corps of patent examiners, and among the registered agents and attorneys who practice patent law.24 Such indicators of reduced participation sustain the concern that the present day patent system retains some residue of more overt discrimination. Harking back to the definition of gender considered above, we might wonder whether, even in the absence of overt discrimination, the patent system is somehow calibrated to disadvantage or exclude those who are designated to play the female role in society.

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 the 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.

But there is also the possibility that the patent system, aligned as it is toward scientific and technological progress, is subject to the same cultural miasma that seems to deter women from full involvement in science and engineering. The sparse participation of women in the patent system may not simply be spillover from an impediment in science, but rather an impediment common to both science and patenting. In particular, if, as some have argued, the fundamental assumptions and practices of science are gendered,28 and if the patent system is oriented toward those same assumptions and practices, with the goal of promoting technological innovation, then the patent system may be hostile to female participation, quite apart from any independent hostility in the technological arts.

This possibility suggests a more generalized concern: it may be that the patent system is gendered-not overtly in order to promote oppression, or even surreptitiously so as to exclude women-such that it is infected with a prevailing set of attitudes about the social role of women. In this view, the patent system might be harboring and reinforcing patterns of thought and action that disadvantage women systemically, and not merely with regard to patenting or associated technological activities. In that case, the patent system may constitute a component of an overall social system that is biased against women and the roles they play in society.

Of course, in one sense this would suggest that the patent system is no worse than many, or perhaps most, social institutions, and that while such biases in the patent system would be troublesome, they would be by no means unique to patents and patenting. In this case, while the gendering of the patent system may be real, and perhaps requires correction, one might argue that the patent system will simply have to take a number and get in line behind the myriad of other institutions that share the same defects. Indeed, if the problem is generalized, then perhaps a complete correction might need to wait for a general societal solution to the underlying causes.