Unregistered Patents & Gender Equality
Harvard Journal of Law and Gender, Vol. 43, No. 1, Forthcoming
44 Pages Posted: 2 Jan 2020 Last revised: 24 Feb 2022
Date Written: December 11, 2019
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.
To explain our proposal, we detail the challenges facing women and other disadvantaged inventors in applying for patents as well as the fact that other intellectual property regimes do not require such applications. We also address a number of objections that our proposal would inevitably raise. In particular we show that, because our proposed unregistered patent system would grant rights for only three years and would protect only against direct copying, these rights would be unlikely to deter incremental or complementary innovation. Such rights would also be fully subject to invalidation under a preponderance of the evidence standard.
Our proposed regime does not solve all of the issues female innovators face. Nonetheless, our proposed regime would benefit women and others by providing protection at no cost, without filing or renewal fees, and equally importantly, by protecting even inventors with little or no knowledge of the patent system and its importance in realizing the benefits of their inventive efforts.
Keywords: intellectual property, patents, law and gender, unregistered rights
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