TRIPS only grants patents to inventions that have “industrial application,” that discourages innovation in female dominated fields

EXCLUSION OF WOMEN INVENTORS BY THE NARROW DEFINITION OF A PATENTABLE INVENTION Eligible Patent Matter (EPM) as a Filtering Factor Intellectual property laws provide important sources of access to concrete and intellectual assets, capital, rights and power.2 5 Recognition of the continued and increasing contribution of intellectual property to innovation is well established. Patent ownership plays an important role acting as an incentive for advancement that inevitably leads to economic growth. As such, the number of patent applications and grants has grown significantly over recent years, as has the type and breadth of inventions that can be patented.26 The laws of intellectual property make it possible for applicants and other people who have access to the patent system to benefit from basic, existential values including liberty, autonomy, and security while developing 27 and actualizing their personhood. From this point of departure, it is no wonder that the laws of property and intellectual property have served as the focal point of a philosophical-legal-social debate. However, intellectual property laws have not yet been subject to major feminist analysis. When viewed within the context of gender, the reality reveals that women scientists are less productive than men scientists. This has a significant and negative impact on women's career advancement by creating and perpetuating inequalities in the relevant fields, such as reward and cognition.

This Article emphasizes the claim that patent law does not provide protection for all products and processes equally, but only for those products or processes that the law itself defines as worthy of protection (resulting in the exclusion of women). In other words, there are built-in legal filters in patent law. One of these accepted "filters" in the field is the principle of EPM. According to this principle, a patentable invention is one that complies with certain criteria, which are established by the law. Inter alia, these include the requirement that the invention be "new and useful." 28

The first argument, described below, illuminates the phenomenon of how the use of the narrow definition of a patentable invention acts to exclude women. A comparison is made between the narrow definition of an "invention" that is prevalent in international treaties and the long-standing broader U.S. approach.

Until recently, it was possible to identify at least two principal legal approaches to defining an invention: (i) the narrow definition, and (ii) the broad definition. The narrow approach is found in the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) 29 and has been adopted by many countries, such as Israel. 3 0 This definition includes technological and industrial aspects as threshold conditions for recognizing an invention as patentable. As explained below, this definition, in actual practice, excludes women as a result of its focus on industrial and technological matters.

The broad approach is best illustrated by U.S. patent law and its traditional interpretation of patentable matter, which is not limited by technological or industrial requirements, and includes a wider range of inventions.The definition adopted by U.S. law is broader than the TRIPS agreement definition and, therefore, more accepting of the varied occupations of women and their creations.

Recently, however, and to the detriment of women in the sciences, this approach was challenged by U.S. courts on varying levels. The Supreme Court, however, in a traditionalist form, most recently rejected the trend of moving lower level U.S. courts toward a narrower approach.31 This narrowing trend can be seen, for example, in In re Bilski by the U.S. Court of Appeals for the Federal Circuit, which will be discussed below. 3 2 The recent struggle in U.S. courts to abandon the broader approach and adopt the narrowing trend is a matter of concern. As the definition of EPM increases its focus on products or processes that contain only mechanical, technical and industrial aspects, it becomes more likely that the definition serves to exclude women from becoming inventors. Therefore, these courts' decisions need to be addressed from a gender perspective.

The most significant international treaties relating to patents have adopted the narrow definition of what is a patentable invention, "patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application."33 This definition as it appears in the TRIPS treaty is not atypical or isolated. For instance, the European Patent Convention (EPC) also takes the industrial approach in defining what constitutes an invention: "European patents shall be granted for any inventions which are susceptible of industrial application." 3 4These structures and treaties of international intellectual property law are centralized and the wording used in international treaties is then translated literally into the amended legislation of the various signatory countries. As a consequence, countries that utilize the TRIPS definition adopted similar definitions that require a technological application as a prior condition for registering a patent and for receiving the protection of patent laws.35 The technological character of an invention has therefore become a central element in the question: what is a patentable invention? As one could attest, "[p]atent law is technology-neutral in theory," but, when taking a deeper view - "it is technology-specific in application."3 6 Intellectual property rights, in general, and patent law in particular, are justified primarily on the foundation of a utilitarian rationale that is expressed in the U.S. Constitution. 37 According to this rationale, in order to encourage progress in fields that are important to humanity, a social contract is entered into between the public and the inventor. In this transaction, exclusive rights are granted, for a limited period, to whoever enriches the world with innovative intellectual products (or is likely to move the process forward). 3 8 Intellectual property laws are intended to act as an incentive factor for inventors to continue to enrich humanity with new and important intellectual products.