The Intellectual Property Gender Gap: Do We Know Enough to Bridge It?
By Tanishka Goswami
In March 2021, the World Intellectual Property Organization (‘the WIPO’) revealed that merely 16.5 percent of the inventors named in international patent applications were women. Viewed in the backdrop of expanding digital transformation across the world, this figure reflects an expanding gender divide. The critical need for gender diversity in science, technology, engineering, and math (‘STEM’) arenas is an issue that society has been unable to address. In this article, the author explores the intersection of gender and intellectual property laws to argue for an incentives-based regime to further social inclusion. The first part of the article examines whether or not intellectual property laws possess the potential to foster inclusive innovation in general. In the second part, the author focuses on the gendered nature of intellectual property laws, and argues against the assumption of a neutral legal regime. The author argues that as a field that recognizes and provides inventors and creators legal exclusivity over their contributions, intellectual property laws have failed to address explicit and implicit gender biases that prevent women in pursuing trademark and patent applications. Lastly, the third part focuses on possible legal and policy-based changes that may bridge the persistent gender gap in innovation.
Fostering Inclusive Innovation through Exclusive Intellectual Property Rights
The United Nations Economic and Social Commission for Asia and the Pacific characterizes inclusive innovation by initiatives that serve the welfare of lower-income and excluded groups. Women have been systematically excluded from science and engineering-related endeavors owing to the prevalence of explicit and implicit gender biases. Among a varied range of opportunities, participation in the intellectual property paradigm is one that women have been prevented from utilizing over years. Scientific studies aimed at mapping innovation systems have primarily focused on fields that have been male-dominated (sculpture, literature, music to name a few) and to the excludesion of expression by marginalized groups including women. This exclusion is prevalent, both, in terms of inventions designed to meet the needs and aspirations of excluded groups, as well as provision of platforms to excluded groups in order to develop inventions themselves.
The question that one may ask is, can intellectual property laws indeed foster inclusive innovation? The impact carried by intellectual property regimes on human rights and social inclusion is well-documented. The law and society scholarship on intellectual property laws has recognized the potential of a well-functioning copyright and patents regime (along with a properly defined set of exceptions) in increasing access to opportunities for better education.[i] While no ‘right to patent protection’ can be claimed, it has been argued that the existence of private property rights in relation to intangible assets effectively ends up promoting inclusivity and realization of several cultural rights. For example, copyright protections not only enhance rewards for authors, but also form the backbone of licensing-payment systems which enable access to creative works driving multiple cultural industries.
Are Intellectual Property Laws Really Gendered?
To many observers, intellectual property law regimes across the world, in particular the patent law, appear socially neutral when compared with family law. The use of phrases such as ‘patent agents’, ‘authors’ and ‘performers’, prevent observers from examining intellectual property laws from the perspective of gender, or any other historically disadvantaged classification. In fact, the question of ‘do patents have gender?’ may even seem absurd to many. However, as Professor Kara Swanson pertinently notes, law replicates ‘existing social hierarchies’ and existing gender norms.[ii] The difficulty in appreciating this perspective generally arises owing to two reasons: one, the seemingly neutral nature of how intellectual property laws are framed; and two, the inconceivability of an incentives-based intellectual property rights regime.
The author seeks to challenge these ideas in discussing how intellectual property laws may be molded to foster social inclusion. With respect to the first idea, we may refer to Dan Burk’s argument on the ‘person having ordinary skill in the art’ / the ‘PHOSITA’ standard adopted in patent systems. Burk observes how objectivity and detachment associated with the PHOSITA standard are similar to those associated with the ‘reasonably prudent person’ or a ‘reasonable man’ under tort jurisprudence. The feminist critique of the ‘reasonable man’ standard revolves around the stereotypical maleness of expected conduct. In other words, if women were not allowed an increasing role in the public sphere owing to a range of discriminatory factors at play, how could the ‘reasonable man’ or ‘reasonable person’ standard be applicable to them in negligence cases? Similarly, in intellectual property laws, the perception of an innovator as a ‘skilled man’ is distanced from the discussion on gendered forms of labor and creativity.
The second idea becomes slightly more tricky to deconstruct, owing to the pernicious impact of implicit gender biases on intellectual property law. We may refer to the case of Sybilla Masters who developed a way to process Indian corn back in 1715, but could not claim a patent to the same owing to the prohibition on married women’s rights to legally own property. The case indicated clear reflection of explicit gender bias. The implications of such bias are more visible to observers, and can be tackled through a direct and coherent change of laws. In the above-mentioned case as well, the Married Women’s Property Act, 1882 was ultimately brought in to provide women the independence regarding their finances and property.
How can law and policy be molded to target implicit biases is the question we need to address. To target very sensitive societal and structural issues would mean actively incentivizing the inventiveness of women and other excluded groups. The following segment explores legal and policy prospects in this regard.
Inclusivity in Data Collection is Imperative to Guide Intellectual Property Laws towards Inclusion
On December 4, 2018, the Department of Industrial Policy and Promotion published draft amendments to the Patent Rules, 2013 in the form of the Patents (Amendment) Rules, 2018. The Rules expanded the eligibility for expedited examination of patent applications to include women as well as small entities. Rule 24C of the Patent Rules, 2003 (‘the Rules’) provides for the procedure to be followed by applicants to request for expedited examination. Form 18A in the Second Schedule of the Rules has to be filed along with the prescribed fee for this purpose. The Amendment has been one of the very few initiatives to incentivize women innovators. It targets the possible restraints women face as a result of unrecognized gender biases and stereotypes, including hesitance in undergoing complicated patent and copyright application processes.
The other direction of focus for progressively molding intellectual property laws would be to look beyond the traditionally valorized forms of knowledge. We may first refer to the Indian law on intellectual property after the coming into effect of the TRIPS Agreement in 1995. To be classified as patentable for the purpose of the Patents Act, 1970, a subject matter must be novel and capable of industrial application, obtained through inventive or non-obvious steps. Additionally, copyrights subsist in original literary, dramatic, or artistic works, cinematograph films, and sound recordings as per section 13 of the Copyright Act, 1957. Despite significant progress over decades, women representation has been limited in STEM arenas. Owing to confinement within domestic spaces, with little or no avenues to obtain technical education, innovative participation by women was also restricted to fields such as cooking and other domestic fiber arts. Observers have noted previously that a synergistic effect analysis of cooking recipes is challenging owing to section 3(e) of the Patents Act, which explicitly precludes “a substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance” from being patentable.
The author believes that becoming too ambitious about legislative changes based on these limitations must not form the primary course of action. Rather, the paramount focus must be placed on collecting accurate data about women’s use of intellectual property protection, and subsequently determininge the barriers that stem from social and cultural conditions. A recent legislation passed in the United States, titled the ‘Study of Underrepresented Classes Chasing Engineering and Science Success Act’ (‘the SUCCESS Act’) directs the U.S. Patent and Trademark Office (‘the USPTO’) to collate the number of patents applied for, and subsequently obtained by “(1) by women, minorities, and veterans; and (2) by small businesses owned by women, minorities, and veterans”. After the coming into effect of the SUCCESS Act, the USPTO presented a report before the Congress in order to present its findings and legislative recommendations to increase the participation of under-represented groups as patentees. Legislative authorization of the USPTO to enable collection of demographic information of applicants was recommended in order to better recognize the existing gender parity. Additionally, the USPTO recommended expansion of federal grant programs to promote inventions and entrepreneurship among under-represented groups.
When we look at the Indian context, there is no government-undertaken documentation of women participation in intellectual property domains to begin with. In fact, attempting a manual analysis of women patent applicants is hindered by poor data quality — it is impossible to undertake gender-identification of names, thereby risking under-representation. The author proposes increased focus on efforts to quantify and analyze the intellectual property gender gap, in line with the vision envisaged by the WIPO. Furthermore, directing policy-making towards promoting and generating investment capital for women innovators and entrepreneurs, as well as fundamental capacity-building is likely to enhance advancement opportunities for women.
The Women Scientists Scheme in India is one such initiative that has been hailed by observers worldwide for encouraging capacity-building in intellectual property domains. However, such a progressive scheme is not devoid of limitations either. WOS-C, which offers internships in intellectual property rights for self-employment, restricts its ambit to women who are highly qualified in terms of their educational backgrounds (a Ph.D. or M.Sc in basic or applied sciences, M.Tech, M.Pharm, etc.). It is imperative to push for diverse research opportunities and training programs to incentivize inventiveness, and mentoring by women inventors and entrepreneurs to ease the challenging process of filing for intellectual property protection.
It is surprising how a ‘Review of the Intellectual Property Rights Regime in India’ by the erstwhile Department Related Standing Committee on Commerce mentions the word ‘women’ once. A convenient acceptance of an uncomfortable reality on women’s representation in intellectual property domains needs to be challenged systematically. Through this article, the author has attempted to dismantle the socially neutral characterization of intellectual property laws, and further proposed potential legal and policy measures to develop the field as more inclusive towards women inventors. On a concluding note, the author reiterates the significance of a holistic approach in collecting data to understand gender disparities in the field of intellectual property. This approach must entail socially innovative and demographically-motivated efforts to help us bridge the gender gap.
[i] Anupam Chander and Madhavi Sunder, ‘Is Nozick Kicking Rawls’ Ass? Intellectual Property and Social Justice’  40 UC Davis Legal Studies Research Paper Series 564, 568.
[ii] Allie Porter, ‘Where Are the Women? The Gender Gap within Intellectual Property’  28 Texas Intellectual Property Law Journal 511, 519.
[This article by Tanishka Goswami, a student at the National Law University, Delhi, was the first prize winning entry at the JDCIL-Esya Centre Article Writing Competition held in 2021]