Patent Law excludes women from obtaining patents---epistemic focus is key to solve

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.