The Role of Patents as a Gendered Chameleon
| DOI | 10.1177/0964663920916237 |
| Author | Jessica C Lai |
| Date | 01 April 2021 |
| Published date | 01 April 2021 |
| Subject Matter | Articles |
Article
Social & Legal Studies
2021, Vol. 30(2) 203–229
The Role of Patents as
ª The Author(s) 2020
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a Gendered Chameleon
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DOI: 10.1177/0964663920916237
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Jessica C Lai
Victoria University of Wellington, New Zealand
Abstract
Patents have been theorised as serving a multitude of different aims and functions since
their inception. The role of patents is chameleon-like. At the same time, studies show
that males are significantly more likely than females to be the inventors of patented
inventions. A nascent but emphatic body of literature highlights that this is, in part, due to
patent law itself being gendered. This article examines how gendered patenting and
patent law have implications for the role of patents. It shows that the role of patents is
not only a chameleon but a gendered chameleon.
Keywords
Dissemination, gender, incentive, innovation, invention, patent law, reward, sex
Introduction
Patents are a kind of intellectual property for inventions, which bestow upon their owners
up to 20 years of exclusive rights to make, use and sell their inventions. They are justified
in various ways. These range from promoting local manufacture and trade (Drahos,
1996: 31; MacLeod, 1988: 206–209; Pila, 2001: 211–215) to incentivising the inventive
process and publication of how to make and ‘work’ an invention (Dam, 1994: 247;
Menell, 2000: 146–147). Post-patent grant, patents are theorised as necessary to incen-
tivise and structure the innovation process (in other words, getting an invention into
marketable form and commercialising it) (Godt, 2007). At the centre of invention and
innovation – directing what is created, published and brought to market – patent law is a
primary system of knowledge governance in the Western (and increasingly global) world
Corresponding author:
Jessica C Lai, Wellington School of Business and Government, Victoria University of Wellington, PO Box 600,
Wellington 6140, New Zealand.
Email: jessica.lai@vuw.ac.nz
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Social & Legal Studies 30(2)
(Drahos, 2010; Silbey, 2015: 184–220). As has been examined by Drahos and Silbey,
this knowledge governance system includes the substance of the law – what is patentable
and what a patent document must include – as well as patent law’s institutions – patent
offices, examiners, registers and attorneys. The function of patents within this system
changes, depending on the exact situation at hand, making the role of patents akin to a
chameleon (Lai, 2017).
At the same time, empirical studies show that patenting rates differ significantly
between the sexes. Patenting is gendered. This is typically argued to result from there
being not enough women in the fields of science, technology, engineering and mathe-
matics (STEM). A smaller, but strong, body of literature identifies how the gender
patenting gap is in part due to patent law itself being gendered. As elaborated upon in
this article, patent law, like all law, embodies the power dynamics that are embedded in
the society that created it. Thus, for example, patent-eligible subject matter comprises
the creations of its drafters – the Western male. These creations predominantly originate
from STEM fields – areas that are traditionally male-dominated and constructed mascu-
line. This and other gendered features of patent law examined in this article result in
feminine knowledge being invisible to the patent system. This allows it to be taken,
filtered through the masculine and patented, mostly by males.
Recognising that patent law is gendered allows us to step away from the ‘not enough
women in STEM’ discourse and to appreciate that this is not the principal problem that
causes gendered patenting. The fundamental problem is that patent law offers limited
protection to fields that are historically and continually female-dominated and con-
structed feminine. It requires that women engage in masculine fields and ways of know-
ing if they wish to patent. Yet, these fields are often hostile to the presence of women.
Patent law and the knowledge governance system it frames thereby ensure that those
with power retain that power to the detriment of the disempowered. More still, the ‘not
enough women in STEM’ rhetoric serves to blame women for not succeeding within a
system that sets them up to fail.
Little has been written about the implications of gendered patenting and patent law
vis-`a-vis the theorised and empirical roles of patents.1 This article contributes to filling
this gap. It examines literature from multiple disciplines to assess the functions of patents
through a gender frame. The article demonstrates how the gendered nature of patenting
and patent law affect each patent function. That is, the current knowledge governance
system results in what is invented, what products and services are brought to market, who
benefits from the patent system and what information is disseminated, being gendered.
This reinforces the argument that the design, interpretation and application of patent law
primarily benefits the masculine and males and safeguards existing power hierarchies.
The second part explains how patenting and patent law are gendered. The third part
follows with an analysis of the consequences of patenting and patent law being gendered
in the light of patent law theory. It illustrates how the different justifications for patents
are implicated, thereby showing that the role of patents is not only a chameleon but a
gendered chameleon.
The article ends with some final thoughts on how the law might move forward to
create a more egalitarian and feminist knowledge governance system. It argues that
perhaps it is not possible to create such a system with patent law at its core and an
Lai
205
entirely different core is required. That is, maybe our chameleon needs to do more
than change its colours and it should morph into a bearded dragon – a lizard that,
even if coded male, can ‘feminise’ if the incubation temperature is high enough
(Holleley et al., 2015).
The Gendered Patent
Before embarking on an exposition into gender and patents, one should note that ‘sex’
and ‘gender’ are not synonymous. Generally, ‘sex’ refers to biological sex (male or
female), though this is of course complex and non-binary (Ainsworth, 2015). ‘Gender’
refers to social identity (man or woman), as cultivated by the culture and society that
informs an individual’s behaviour and expression (masculine or feminine). This becomes
the performative function of gender, experienced in society as varying degrees of mas-
culinity and femininity (Butler, 1988). Thus, while most females identify as women and
behave feminine, this need not be the case.
The statistical patenting gap between males and females reflects a difference based on
sex. In contrast, the reasons why the gap developed and persists are attributable to
gender. That is, they pertain to socialised constructions of the scientist and the inventor,
science and the inventive process, the patentable invention and the entrepreneur, all of
which are coded masculine (Burk, 2007, 2011; Rosser, 2009; Swanson, 2011). Further-
more, patenting is gendered because of gender-normative roles, biases and power
dynamics (Lai, 2020).
The vast majority of named inventors on patents are male. Data from the international
filing system (through the Patent Cooperation Treaty (PCT)) (Frietsch et al., 2009; Lax
Martinez et al., 2016; UKIPO, 2019: 14–18), European Patent Office (EPO) (European
Studies on Gender Aspects of Inventions, 2009; Giuri et al., 2007: 1111; Kugele, 2010:
134–135; Naldi et al., 2005) and the United States (Ding et al., 2006; Mill et al., 2016;
Sugimoto et al., 2015: 5; USPTO, 2019) reflect the same sharp trends. To illustrate, in the
United States in 2016, only 21% of patents named a female inventor, and only 12% of all
inventors were female (USPTO, 2019: 3). Similarly, in 2015, only 29% of PCT filings
named a female inventor, and females made up only 15% of inventors (Lax Martinez
et al., 2016: 8). Of PCT filings in 2015, only China and Korea showed gender parity in
PCT filings with 50% of applications naming at least one female inventor (Lax Martinez
et al., 2016: 10). However, even in these jurisdictions, only 29% and 27% of total named
inventors were female in China and Korea, respectively.
If a female inventor is named, this tends to be among a group of male inventors
(European Studies on Gender Aspects of Inventions, 2009; Lax Martinez et al., 2016: 8;
Naldi et al., 2005: 299–314; USPTO, 2019: 12), and they are seldom listed as first
inventor (Ashcraft and Breitzman, 2012: 9). Only a small percentage of patented inven-
tions have solely female inventors, whether as individuals or teams (Lax Martinez et al.,
2016; McMillan, 2009: 686; Meng and Shapira, 2011: 34; Naldi et al., 2005: 307).
Females also tend to work in larger teams than males (USPTO, 2019: 11–12). This
potentially indicates that females are more likely to work in teams and/or tend to only
patent when males are involved.
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Social & Legal Studies 30(2)
The gap differs country to country, reflecting what fields a country is stronger in
rather than social equality (Lax Martinez et al., 2016: 9–14). For example, jurisdictions
that are strong in fields with relatively high female participation, such as chemistry and
biotechnology, have smaller gender patenting gaps. In contrast, countries that have a
strong industry focus on engineering tend to have larger patenting gaps.
Existing literature examines why it is that females patent...
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