All patent eligibility requirements are gendered and inaccessible to female inventors---the affs expansion of it is insufficient to address the issue

Regarding the ‘inventor’, patent law is concerned with those who contribute to the ‘inventive concept’ behind an invention. There is no inventorship attributed to those who ‘merely’ contribute manual or bodily labour (Burk, 2007, 186-194). Similarly, patent law is not interested in the communal nature of the inventive process (Pollack, 2006: 615-616) – it requires a discrete list of those who contributed to the discrete inventive concept. This reflect patent law’s development based on the justification that intellectual labour of the mind was of greater value than mere labour of the body (Foster, 2011: 319-320). More specifically, the mind/body dichotomy mirrors the market favouring masculine work in the intellectual (derived from the great male ‘geniuses’), over feminine labour (derived from nature and the ‘nurturers’). Thus, patent law idealises the constructed lone genius inventor (Fausto-Sterling, 1981: 45–46), who exists within a capitalist mode of production and ‘divid[es] subject from object and knower 4 from the known’ (Halbert, 2006: 439). In contrast, feminine knowledge is often physical and typically related to child-rearing, caretaking and the domestic (Burk, 2007: 191–194). It is stereotypically invented in a cumulative fashion in communal environments, where invention is inseparable from what has come before and from its knowers. This does not sit well with modern patent law requiring nameable inventors of an isolated inventive concept. As to patentability, an invention must be novel, non-obvious (or embody an inventive step), have utility or be useful (or have industrial application in Europe), and constitute patent-eligible subject matter. The requirements for patentability reflect multiple constructed binaries, which favour the masculine over the feminine. The gendered nature of these requirements has been analysed in depth elsewhere (forthcoming) and is summarised in the following. The standard of novelty requires that inventions are new when compared to prior art. This is ostensibly a quantitative assessment. However, the conceptualisation of novelty is valueladen. Historically, women’s inventions were classified as constituting better ways to do housework, ‘make-do’ or improvisations, or ‘an extension of the traditional homemaker’s role’ (McDaniel, Cummins and Sender Beauchamp, 1988: 8–9; Stanley, 1992: 197). They were not considered new, but part of a woman’s role in the private sphere – the home (e.g. GordonBouvier, 2019). Only men were considered to occupy the public sphere – a place of trade and commerce (Elshtain, 1993; Rosaldo, 1974: 17; Pollack, 2006: 613 and 615). That is, women are socialised to give, while men are free to take from the private sphere and commercialise and gain in the public sphere. Inventions must be non-obvious to the ‘person having ordinary skill in the art’ (PHOSITA). PHOSITA must consider the invention to be inventive. This is in relation to the ‘common general knowledge’. Constructed masculine (Burk, 2011: 903–4), PHOSITA judges inventions based on the common general knowledge of men. As feminine knowledge is in the private sphere, it is not part of the common general knowledge. Thus, inventions are only assessed relative to masculine modes of science and invention (Burk, 2015). Feminine knowledge is invisible to the patent system. This keeps knowledge coded feminine open to appropriation – considered new and possibly embodying an inventive step when filtered through masculine modes of science and invention (Foster, 2011: 312). If women traditionally occupy the private sphere, it should be immediately clear that the utility or industrial application requirement discriminates against them. Anglo-American jurisdictions use the utility standard, which has been interpreted as meaning capable of being worked in business or industry (Pierce, 2006: 7, 72). 2 Being in the private sphere, women were less likely to create something to be worked in business. European jurisdictions require that inventions have an industrial application. ‘Industrial’ has been defined according to masculine ideals of work (Mellor, 1997; Rose, 1986). Masculine labour generates abstract knowledge in laboratories, research institutes and factories, outside of social relationships, allowing it to be commoditised. In contrast, feminine labour is constructed as ‘care’ labour, being labour of the hand, brain and heart, and placed within a social structure that de-commoditises it (Halbert, 2006: 439). The definition of patent-eligible subject matter analogously reflects a focus on the industrial. It consists of manners of manufacture, machines and compositions of matter.3 It is the products of industrialised labour, as opposed to care labour (Halbert, 2006: 439; Doagoo, 2014: 191–8).