Redefining Progress: the Case for Diversity in Innovation and Inventing

__ UCLA L. Rev. ___ (2024)

UCLA Law Review, Forthcoming

96 Pages Posted: 28 Sep 2022 Last revised: 13 Oct 2023

Date Written: September 8, 2022

Abstract

This Article makes the empirical and legal case for redefining the constitutional concept of patent “progress” to include the promotion of a diversity of innovators and inventors, and not just innovation. Based on a survey of the literature, it details four plausible mechanisms, also recognized in patent law, by which diverse innovators improve innovation: novelty, non-obviousness, (overcoming) conflict, and numerosity. It introduces the concept of the “innovator-inventor” gap—the lower rate at which underrepresented technical workers become inventors—and documents how across innovative workplaces, womenare patenting at a fraction of the rate of their male counterparts, in part due to barriers placed by the law and mechanics of inventorship. This Article makes several recommendations for advancing “progress” redefined: (1) reconsider inventorship law and policy, (2) institutionalize and strengthen the Patent Office’s ability to promote a diversity of innovators and inventors, and not just invention, (3) launch a public-private innovator diversity pilots clearinghouse to support the rigorous evaluation and refinement of relevant policies and practices, and (4) a periodic, innovator-inventor survey for informing the design of policies and practices for making progress.

Keywords: patents, empirical legal studies, diversity, research administrative law, experimentation, controlled trials, patent prosecution, bias

JEL Classification: K20, L51, O31, O34

Suggested Citation

Chien, Colleen V., Redefining Progress: the Case for Diversity in Innovation and Inventing (September 8, 2022). __ UCLA L. Rev. ___ (2024), UCLA Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4213799 or http://dx.doi.org/10.2139/ssrn.4213799

Colleen V. Chien (Contact Author)

UC Berkeley School of Law ( email )

302 JSP
2240 Piedmont Ave
Berkeley, CA 94720
United States
510-664-5254 (Phone)

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