Link – Objectivity/Patents

Bender is not alone in her assessment of the purportedly neutral, dispassionate, objective legal standard.

Other commentators have also critiqued legal objectivity, arguing that other legal standards are closely tied to "masculine" themes of dominance and subordination. In this essay, I do not propose to review neither all of these standards, nor all the debates against (and among) them. However, I will touch on one of the most prominent and influential critiques of legal objectivity, which has been offered by Catherine MacKinnon.68 MacKinnon's work has a direct bearing on feminist critique of objectivity outside of law, tying the debate in law to that in other disciplines, including the question of objectivity in science.

MacKinnon draws a direct correlation between objectivity and objectification; she has argued that "to look at the world objectively is to objectify it."69 To view something objectively is to view it as having by its nature certain characteristics.70 Frequently, the "natural" characteristics of the object that are foregrounded by the observer are those that are useful to the observer.71 The objective stance thus allows the observer to attribute to the object the attributes desired by the observer.72 Here, the objective trope of distance and of neutrality becomes important; the purported separation of objectifier and object allows the objectifier to assert detachment, and therefore impartiality, when observing the attributes of an object.73 The character attributed to the object is therefore asserted to be its innate and natural character rather than that projected by the observer.74

In MacKinnon's view, objectivity therefore masks or hides the power of the observer: the power to assign certain attributes to the objects of his consideration.75 MacKinnon argues that this facade in turn allows objectivity to be used to perpetuate social conditions of hierarchy;76 the dominant social order can be characterized as "natural" rather than created.77 She is particularly concerned that an objective standpoint can be so used to create and perpetuate subordinate status for women.78 Objectivity thus fosters the view that the social differences between men and women are viewed as objectively natural or characteristic of the sexes, rather than socially constructed. Objectivity becomes a key trope in creating and enforcing gender.79

This critique of objectivity may be helpful in a number of respects to illuminate the relationship between several elements we have already encountered in thinking about legal standards: the move from objectivity to objectification, the role of distance and impartiality, and a commonality between objectivity in science and objectivity in law. But in thinking about patent standards, at some point it may perhaps be necessary to part company with MacKinnon's line of argument. In all of her work, MacKinnon is primarily and famously concerned with the problem of sexual violence against women; she argues that a pervasive culture of objectification is the cultural antecedent that leads to rape and other forms of sexual assault.80 This concern colors her analysis at every juncture. MacKinnon appears to claim that all acts of domination entail a sexual aspect: "The act of control," she says, ". . . is itself eroticized under male supremacy."81 Objectification is a mechanism of control, and control or dominance is in her analysis always erotic.82 This stance may pose something of a problem in drawing upon MacKinnon to consider objective standards in patent law, as it implies that the material or, ultimately, financial control conferred by patent law's objective standards part of the patriarchy's overall culture of erotic dominance. Dominance of the material world from which the invention is drawn, of the materials or processes that comprise the invention, of licensors and users of the invention, is on MacKinnon's analysis ultimately grounded in a standpoint of sexual subordination.83