Gendered ‘Objective’ Patent Law: Of Binaries and a Singularity
| Published date | 01 September 2020 |
| Author | Jessica C. Lai |
| DOI | http://doi.org/10.1111/jols.12241 |
| Date | 01 September 2020 |
JOURNAL OF LAW AND SOCIETY
VOLUME 47, NUMBER 3, SEPTEMBER 2020
ISSN: 0263-323X, pp. 441–67
Gendered ‘Objective’ Patent Law: Of Binaries and a
Singularity
Jessica C. Lai∗
Patent law protects the technical. It is seemingly objective in
terminology and application. Yet studies show that males are
significantly more likely than females to be the inventors of patented
inventions. Patenting is not objective, it is gendered. The reasons
for this are multiple and include the fact that patent law itself,
including its presumptions and interpretation, is gendered. This article
examines how patent law reflects multiple gendered binaries, despite
being drafted in ostensibly neutral terms. These serve to favour
masculine modes and fields of creation, while ignoring and devaluing
feminine knowledge and ways of knowing. We should be concerned
that patent law is gendered because patents affect wealth distribution,
what is invented and commercialized, and what information and
knowledge is disseminated, built upon, and viewed as valuable.
Thus, instead of embodying gendered binaries, the law should reflect
a singularity – a unique point, where the system degenerates or
diverges to recognize and encourage the multiplicity of ways in which
invention and innovation can and do occur, beyond socially constructed
binaries.
I. INTRODUCTION
Patents are a type of intellectual property that protect ‘technical’ inventions
with up to 20 years of exclusive rights. They are supposedly objective and
ungendered. Yet empirical studies show that patenting rates differ vastly
between the sexes. Patenting is gendered. The existing literature reveals
multiple reasons why females patent less than males. These reasons lie
within and outside the realm of patent law, but fall broadly into three
categories.
∗Wellington School of Business and Government, Victoria University of
Wellington, New Zealand, PO Box 600, Wellington, 6140, New Zealand
Jessica.Lai@vuw.ac.nz
441
© 2020 The Author. Journal of Law and Society © 2020 Cardiff UniversityLaw School
The first category relates to the fact that more males do the kinds of
inventing that are protected by patents.1These are embodied in masculine
domains – science, technology, engineering, and mathematics (STEM) –
which reflect social and economic power. Certain types of research and
innovation are male or female dominated because of socialization, dependent
on the exact culture and community. There are no inherently (solely
biologically determined) male and female fields, or inherently male and
female ways of knowing.2Yet the fact that males are socialized to perform
masculine, and females are socialized to perform feminine, ensures the
continuation of male dominance in patent-heavy fields.
That empirical data around biological sex vis-à-vis inventing,patenting, and
commercializing are a reflection of socialization rather than biology leads to
the second category of reasons. This is that patent law has been developed
around Western-male-centric modes of invention and innovation.3In other
words, males do the kinds of inventing that are protected by patents, because
patents protect male kinds of inventing. Patent law protects the interests of
its creators, leaving the knowledge of the disempowered (such as women
and Indigenous peoples) free to be taken, filtered through the masculine,
and patented. This perpetuates the socialized value placed on masculine
inventions.
Third, invention and innovation take place in gendered environments, in
which there are multiple institutional, structural, and organizational biases
against women. For example, women are dispropor tionately burdened with
1 E. Leahey and A. Blume, ‘Elucidating the Process: Why Women Patent Less than
Men’ in Gender and Entrepreneurial Activity, ed. A. N. Link (2017) 159; S.
Barwa and S. M. Rai, ‘Knowledge and/as Power: A Feminist Critique of Trade-
Related Intellectual Property Rights’ (2003) 7 Gender, Technology and Development
91; S. Yanisky-Ravid, ‘Eligible Patent Matter – Gender Analysis of Patent Law:
International and Comparative Perspectives’ (2011) 19 Am. University J. of Gender,
Social Policy & the Law 851.
2 What is masculine or feminine can change, depending on how a technology
embodies gender relations and how the technology is subsequently interpreted
and affects gender relations; J. Wajcman, ‘Feminist Theories of Technology’
(2010) 34 Cambridge J. of Economics 143, at 150–151. Thus, females
can and do invent in masculine ways and fields, and male work can be
feminized.
3 That patent law has been developed around Western modes of invention is clear from
Parts II–IV of this article. Regarding the gender dynamic, see L. A. Foster, ‘Patents,
Biopolitics, and Feminisms: Locating Patent LawStruggles over Breast Cancer Genes
and the Hoodia Plant’ (2012) 19 International J. of Cultural Property 371; L. A.
Foster,‘Situating Feminism, Patent Law, and the PublicDomain’ (2011) 20 Columbia
J. of Gender & Law 262; T. L. Gearhar t-Serna, ‘Women’s Work, Women’s Knowing:
Intellectual Property and the Recognition of Women’s Traditional Knowledge’ (2010)
21 Yale J. of Law and Feminism 372.
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© 2020 The Author. Journal of Law and Society © 2020 Cardiff UniversityLaw School
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