Patent Law and Women

Tackling Gender Bias in Knowledge Governance

Jessica C. Lai, Jessica Lai

• Publisher: Routledge
• Year: 2021
• eBook ISBN: 9781000449778
• Edition: 1
• Topic: Law
• Subtopic: Financial Law
• Index: Law

This book analyses the gendered nature of patent law and the knowledge governance system it supports.

The vast majority of patented inventions are attributed to male inventors. While this has resulted in arguments that there are not enough women working in science, technology, engineering and mathematics, this book maintains that the issue lies with the very nature of patent law and how it governs knowledge. The reason why fewer women patent than men is that patent law and the knowledge governance system it supports are gendered. This book deconstructs patent law to reveal the multiple gendered binaries it embodies, and how these in turn reflect gendered understandings of what constitutes science and an invention, and a scientist and an inventor. Revealing the inherent biases of the patent system, as well as its reliance on an idea of the public domain, the book argues that an egalitarian knowledge governance system must go beyond socialised binaries to better govern knowledge creation, dissemination and maintenance.

This book will appeal to scholars and policymakers in the field of patent law, as well as those in law and other disciplines with interests in law, gender and technology.

1 Gendered patenting

DOI: 10.4324/9781003128502-2

Intellectual property regulates certain intangible “things”. While trade mark law protects registered marks used in trade, copyright law and patent law are more geared toward protecting the creative. The distinction between the subject matter of copyright and patents is by no means hard and fast, and (as discussed in Chapter 7) it is a constructed difference. Generally (or legally speaking), copyright protects the artistic and aesthetic, such as artwork, literature and musical works. In contrast, patents protect industrial and technical inventions, such as machines and pharmaceuticals. If granted, a patent owner (or patentee) has up to 20 years of exclusive rights.

Women can apply for and be granted patents. There is nothing in the law that is apparently unequal. Furthermore, because patents are granted for industrial and technical inventions, they are outwardly objective in appearance. Yet, multiple data sets from around the world show that patents are predominantly attributed to male inventors. Patenting is gendered. Chapters 2 and 3 examine why it is that patenting is gendered. This chapter outlines the nature of the patent gender gap.

1 General statistics

Every jurisdiction has slightly different rules for what is patentable. International law and globalisation of trade have resulted in a certain degree of harmonisation. However, the differences in patentability across jurisdictions mean that data from different countries are not directly comparable. However, the gender patenting gap exists around the world.¹

As illustrated in Table 1.1, the gender patenting gap is exhibited in patent applications made through the international filing system. This is via the World Intellectual Property Organization (WIPO) Patent Cooperation Treaty (PCT).² This does not offer international patents. Patents are territorial (that is, jurisdictionally bound). However, applicants in PCT contracting states can file “PCT applications” through their local patent office. These are passed on to WIPO, which then has an administrative role in distributing these to selected foreign patent offices. In 2015, 71 per cent of PCT filings named only male inventors, and males constituted 85 per cent of inventors.³

1 Gema Lax Martine, Julio Raffo and Kaori Saito, “Identifying the Gender of PCT Inventors” (November 2016) Economic Research Working Paper No. 33, WIPO Economics and Statistics Series, 11.

2 Through the Patent Cooperation Treaty. See Lax Martine, Raffo and Saito (n 1) 8. See also UKIPO, “Gender Profiles in Worldwide Patenting: An Analysis of Female Inventorship” (September 2019), 8–12; and Rainer Frietsch et al., “Gender-Specific Patterns in Patenting and Publishing” (2009) 38 Research Policy 590.

3 Lax Martine, Raffo and Saito (n 1) 8.

Table 1.1 Comparison of inventors

	% female inventors of total inventors	% applications/patents with only male inventors	% applications/patents with only female inventors
United Kingdom (UK), 2017, applications.^6	11	69	4.9
United States (US), 2019, granted patents.^7	12.8	78.1	4 (2016 data)^8
Australia, 2016, applications.^9	Not available	74	5
European Patent Office (EPO), 2001–2003, applications.^10	8	Not available	Not available
WIPO Patent Cooperation Treaty (PCT), 2015, applications.^11	15	71	4.3

Similar statistics can be seen in applications made to the European Patent Office (EPO).⁴ The EPO grants a bundle of national patents, based on the European Patent Convention. A national patent granted through the EPO can be ruled invalid by the national courts. From 2001–2003, only 8 per cent of inventors on EPO applications were female.

Unsurprisingly, similar statistics exist at the national level. To illustrate, of patents granted by the United States Patent and Trademark Office (USPTO) in 2019, only 12.8 per cent of inventors were female and 78.1 per cent of the patents named only male inventors.⁵ Similarly, in the United Kingdom, 69 per cent of applications in 2015 named only male inventors and only 11 per cent of inventors were female. Finally, in Australia, 74 per cent of patent applications from 2016 had no female inventors. The national-level statistics presented here are from Western, English-speaking countries. This is due to the perspective of this book. However, it is worth noting that the statistics are similar around the world, as exhibited by the international filing data and the national breakdowns one finds in that data.

4 Fulvio Naldi et al., “Scientific and Technological Performance by Gender” in Henk F Moed et al. (eds), Handbook of Quantitative Science and Technology Research (Springer, 2005) 299; Paola Giuri et al., “Inventors and Invention Processes in Europe: Results from the PatVal-EU Survey” (2007) 36 Research Policy 1107, 1111; European Studies on Gender Aspects of Inventions, “Statistical Survey and Analysis of Gender Impact on Inventions” (2009) EUR 036671; Kordula Kugele, “Analysis of Women’s Participation in High-Technology Patenting” in Pooran Wynarczyk and Susan Marlow (eds), Innovating Women: Contributions to Technological Advancement (Emerald Group Publishing, 2010) 123, 134–5.

5 USPTO, “Progress and Potential: 2020 Update on U.S. Women Inventor-Patentees” (2020) Office of the Chief Economist, IP Data Highlights No. 4, 3 (hereinafter USPTO 2020 Update); Cassidy R Sugimoto et al., “The Academic Advantage: Gender Disparities in Patenting” (2015) 10(5) PLoS ONE e0128000, 5; and Waverly L Ding, Fiona Murray and Toby E Stuart “Gender Differences in Patenting in the Academic Life Sciences” (2006) 313 Science 665; Jessica Milli et al., “Equity in Innovation: Women Inventors and Patents” (2016) Institute for Women’s Policy Research.

6 UKIPO (n 2) 13.

7 USPTO 2020 Update (n 5) 3.

8 USPTO, ‘Progress and Potential: A Profile of Women Inventors on US Patents’ (2019) Office of the Chief Economist, IP Data Highlights No. 2 (hereinafter USPTO 2019).

9 IP Australia, ‘Australia is Closing the Gender Gap on Female Inventors’ (8 March 2018) <https://www.ipaustralia.gov.au/about-us/news-and-community/news/australia-closing-gender-gap-female-inventors.

10 European Studies on Gender Aspects of Inventions (n 4).

11 Lax Martine, Raffo and Saito (n 1) 8.

If a patent application or grant names a female inventor, this is typically among a group of male inventors.¹² That is, only a small percentage of patented inventions have solely female inventors (whether as individuals or in teams).¹³ This is also shown in Table 1.1. Of WIPO PCT applications in 2015, only 4.3 per cent of applications were attributed to female-only inventors. In the UK, this statistic was 4.9 per cent in 2017.

Females also tend to patent in larger teams than males.¹⁴ This potentially indicates that females are more likely to work in teams and/or tend to only patent when males are involved. Furthermore, if a patent names a female inventor, that female is seldom listed as the first inventor.¹⁵ As discussed further in Chapter 3, patenting in larger teams and not as first inventors negatively affects the reputational gains that females might get from paten...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of illustrations
• Acknowledgements
• Introduction
• 1. Gendered patenting
• 2. The organising force of gender
• 3. Feeding the cyborg
• 4. The consequences of gendered patent law and patenting
• 5. Deconstructing the lore
• 6. Of monsters and men
• 7. Reconstructing the law
• Conclusion
• Index