Eligible Patent Matter - Gender Analysis of Patent Law: International and Comparative Perspectives

Abstract

This article challenges our patent and other intellectual property systems and doctrine to be conscious of built-in biases and disparate impacts on gender in an effort to be more conducive to and welcoming of female participation. Looking at the realities of gendered invention from a global perspective and through a feminist lens, the article argues that the very framework underlying the discourse about intellectual property is lacking a focus on the imbalance between genders and the promotion of gender equality. In "Eligible Patent Matter-Gender Analysis of Patent Law: International and Comparative Perspectives", the article recognizes the minuscule percentage of women as patent inventors who own the property rights of their inventions, but focuses the analysis on why this is so. The article uses feminist and critical legal theory to argue that patent laws themselves are neither neutral nor objective. The article hones in on the definitions of "patentable inventions" and "inventor" as tending to exclude women. The article also explores several different definitional frameworks, including the narrow international definition provided by the TRIPS agreement adopted by many countries including Israel, and the broader and more flexible approach utilized by United States courts. The article argues that the globally prevalent rationale of promoting welfare only to narrow technological inventions discriminates against a majority of women who are responsible for the welfare achieved through inventions in other non-technical and "non-machine" fields. The article calls for a global rethinking of the definitional approach used and an expansion of the definition of patentable inventions, noting that recognition of patent protection for female innovation will encourage progress and development. The article posits that the law as it stands creates and perpetuates social gaps, but can be corrected if the criteria are rewritten to include women's experiences and grant them equal value through international treaties. Gender should be central to international intellectual property discourse, not discussed at the margins.