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Spicy IP Fellowship 2016-17: enGENDERing (a) Neutral IP Regime: Some Reflections

Our Spicy IP Fellowship applicant, Balu Nair, sent us this piece below for Women’s Day a couple of weeks ago. This is his first submission for the fellowship.


This piece titled Women on Top: How these women showed India the way in filing patents in global technology published at Your Story, on the occasion of Women’s Day highlights the achievements of women patentees from India. At the same time, it paints a grim picture of the dismally low number of women patentees across the globe. While there is yet to be a study on the share of patents held by women in India, reports by the National Bureau of Economic Research and National Women’s Business Council account for the number of patents granted to women in the United States. Without going into the numbers, it is suffice to say that even in an advanced economy like the USA, women patent much lesser as compared to men. Some of the findings of the above quoted studies are instructive in it that they dispel the traditionally held beliefs surrounding reasons for the lower women participation as rights holders.

The primary one being that under representation in Science and Engineering (S&E) degree courses contributes to only 7% of the gender gap in commercialised patents. The gender gap shoots up to 78% among the holders of S&E degrees. Another observation worth noting is that within the fields of S&E, women are underrepresented in patent intensive fields like electrical and mechanical engineering. While these studies are restricted to patent and trademark holders, it is a well-known fact that women are far from achieving parity in fields capable of getting copyright as well. Traditional barriers like the lack of encouragement for the girl child to take up science and engineering, low pay scales within engineering, difficulty in filing of patents etc. have certainly impeded the cause of women within the patent system. The same holds true for copyright intensive fields, which have been male dominated for the longest periods of time. But then, are these the sole or even primary reasons for the disparity on display? No, say scholars like Dan Burke, Ann Bartow, Kara Swanson, Rebecca Tushnet etc. who have found a more deep rooted, inherent malaise within the IP regime which prevents it from being gender neutral.

Mapping the arguments

Gender, as discussed in feminist critiques of IP and elsewhere, is qualitatively different from sex. It is a social construct and has characteristics attributed by the society, such as feminine and masculine. While there may no longer be any explicit prohibitions on women within the patent system, its standards of Person Having Ordinary Skill in the Art (‘PHOSITA’) and non- obviousness have masculine undertones.

Dan Burke, in his seminal piece titled ‘Do Patents Have Gender?’, asserts that these standards envision a creative genius isolated from the society and blessed with a God’s eye view. The test of obviousness adopted in the case of In Re Winslow set out the famous ‘Winslow Tableau’, which portrays PHOSITA as an all knowing genius aware of all the prior art in his area of invention. Thus, the test lays down an “objective” legal standard bereft of any subjectivity. Burke points out that there are striking similarities between PHOSITA and the ‘reasonably prudent person’ (used to be reasonable ‘man’ earlier) found in tort jurisprudence. Law attributes both of them with ‘objectivity’, a quality which feminist scholars have previously pointed out to have gender implications. ‘Objectivity’ presupposes that certain characteristics are inherent in the object and have nothing to do with the onlooker. Thus, one can see how objectivity as an idea is closely tied to the popularly held beliefs regarding masculine and feminine traits as inherent in the individual and not something which are a result of social attribution.

Yet another interesting argument raised against the current patenting regime (as well as copyright, albeit slightly differently) is the mind body dualism practised by it. This is more so in the case of USA, where the first to invent (conceive) gets patent over the first to file for it. Under this system, the mental conception of the invention is the predominant factor in awarding a patent and reducing it to practice is seen as a matter of routine, capable of being achieved even by an artisan. This precedence attributed to the mind is typical of the western practice of prioritising mind over body, masculine over feminine and culture over nature, suggests Burk. Thus, certain inventions and knowledge are accorded greater acknowledgement by the present system as evidenced in the patent dispute over Feline Immunodeficiency Virus. In this case, the hypothesis of a cat shelter keeper led to the isolation of a virus and a patent on the virus as well as the method of isolating it. But, her appeal to be added as one of the patent holders was rejected. Similar arguments apply to the expropriation of traditional knowledge held by communities around the world.

The requirement of an industrial or technological anchor for patenting an invention is another possible impediment. According to the TRIPS definition, an invention is eligible for a patent if it is capable of industrial application, among other things. It is argued that this focus on industrial application has the potential to alienate women from seeking patents. A broader definition could thus possibly ensure patent for the numerous innovations that women innovators have come up with, like social inventions, educational tools etc.

Corollary to the above is the fact that the patent system has been quite reluctant in allowing patents in spheres like fashion, cooking recipes etc, which have traditionally been associated with women.Worth noting at this juncture is the case of Egbert v. Lippman, decided in 1881 involving the patenting of ‘corset’ (a garment worn by women), having a female patent holder. The case is remembered for certain remarks, which have been considered gendered.

A number of issues in the copyright domain have also been identified to be problematic by gender scholars. The instant readiness to bring a parody, which involves sexualising of the original, under the fair use exception has been criticised. Similarly, in case of pornographic movies, the suitability of granting copyright by taking economic incentive as the sole criterion without considering the fall out on women has also come under fire.

Looking ahead

A mere glance at the arguments raised by the gender scholars is enough to convince that there is a prima facie case against IP regime being patriarchal. But, more surprising is the fact that this issue has not been raised often enough and in detail by IP experts. It is also interesting to note that most of the above cited articles have been published in journals covering gender issues than intellectual property.

This is an excellent piece compiling the body of work, which has till date taken place on gender issues pervading IP. One gets the feeling that more work needs to be done before we could finalise the alternatives for existing standards. As far as the more prominent problems like under representation are concerned (at least in India), schemes like these might give a nudge, but are not sufficient. Then again, as has been mentioned in the very beginning, under representation is not always the sole or even primary reason for gender disparity within IP. Thus, a simultaneous addressing of the larger social reasons and inherent problems is what is required.

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One comment.

  1. Harshavardhan Ganesan

    Couple of points of contention in another wise enthralling article.

    1. You should possibly also make it clear that the first to invent system in America has been replaced by the first to file system that is currently practiced vis-a-vis the AIA Act 2011. Assumedly, it is only for prospective inventions, but still, a good turning point.

    2. I think there is a marked difference from how the words of the statute have been interpreted and used in institutions which does not see a huge female population ( Your industrial use argument for example), and the practice of Black inventors, from being excluded when it comes to ownership of Patents. In the case of women, it is a matter of policy interpretation, whereas in the latter, it is a matter of clear legislative intent. I understand the arguments relating to how women have traditionally been denied rights over things like cooking recipes, but I also believe that giving them patents just because they are women, when recipes are otherwise not covered, would be imprudent.



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