And now for the stupidest argument I have heard in quite some time: Miriam Marcowitz-Bitton, Yotam Kaplan, and Emily Michiko Morris, “Unregistered Patents & Gender Equality,” Harvard Journal of Law & Gender, Vol. 43 (2020): 47–89. They say women don’t get their “fair share” of patent rights because you have to apply for a patent, and that is costly; so they want to create a new regime of “unregistered patent rights,” which makes no sense at all if you understand how existing patent law works. From the Abstract:
Women do not get a fair share when it comes to patenting and are far less likely to own patents. This disparity is in part because of not only the inherent biases in science and technology and in the patent system itself, but also because of the high costs of even applying for patents. This article therefore proposes an unconventional new regime of unregistered patent rights to relieve women and other disadvantaged inventors of the costs of applying for registered patent rights and to help them gain greater access to patent protections. Patents are a glaring exception to the unregistered protections provided in other areas of intellectual property, which are more egalitarian in design. By providing automatic patent rights, our proposed regime would allow for greater protection for disadvantaged innovators, in much the same way that copyright, trademark, and other forms of intellectual property currently do.
First, it’s not a problem that women are “under-represented” in patents, that they don’t get their “fair share”. For one, patents are totally unjust. For another, not everything in society has to be totally equal in outcome. Women and men are not equally represented in lots of fields in life. There are more male coal-miners than women, probably. Women can’t be drafted; that’s not a “problem.” Who cares. So this is a non-problem.
And second, their “solution” is dumb. These cats are obviously not patent practitioners and have no understanding of the patent system. There is a reason you only get a patent if you apply for one: you have to disclose it to enable it and explain it; you have to provide a claim in writing so people know what you are claiming; it has to be examined to make sure it’s novel and non-obvious, and so on. An “unregistered” patent system would be a disaster even worse than our current system, it would undermine and conflict with it. One of the few good things about our current patent system is that you must register, and that it costs money. This reduces the overall number of patents issued, which is good. If it was even harder and more expensive to get a patent, this would be good; it’s one reason I’ve argued we should re-impose a registration requirement for copyright, so that it’s not automatic.1
They are basically proposing an unworkable, unjust, non-solution to a non-problem. This pretends to be actual scholarship. Breathtaking. I guess this is what you get from “scholars” at the “Bar-Ilan” University “Factory of Law” [sic]. Jesus.
See also “Progress and Potential A profile of women inventors on U.S. patents,” USPTO Office of the Chief Economist, IP Data Highlights, Number 2 (February 2019).
Also: Dennis Crouch, “He, She, or They in US Patent Law,” Patently-O Blog (June 28, 2022):
For its part, the USPTO has not historically asked for the gender of its applicant. Still, there is plenty of evidence for historic and ongoing systemic gender bias. See, for example, Kyle Jensen, Balázs Kovács & Olav Sorenson, Gender Differences in Obtaining and Maintaining Patent Rights, 36 NATURE BIOTECH. 307, 308 (2018); B. Zorina Khan, Married Women’s Property Laws and Female Commercial Activity: Evidence from United States Patent Records, 1790-1895, 56 J. ECON. HIST. 356 (1996); Deborah J. Merritt, Hypatia in the Patent Office: Women Inventors and the Law, 1865-1900, 35 AM. J. LEGAL HIST. 235, 290 (1991); Carroll Pursell, The Cover Design: Women Inventors in America, 22 TECH. & CULTURE 545 (1981). Dan L. Burk, Do Patents Have Gender?, 19 Am. U. J. Gender Soc. Policy & L. 881 (2011).
See also this the 19th Annual IP Symposium: Gender & IP – Addressing the Gap, Texas Intellectual Property Law Journal (2020). Jesus.
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