Redefining Progress and the Case for Diversity in Innovation and Inventing

Abstract

This article makes the empirical case for diversity in innovation and inventing on the basis of at least four plausible mechanisms, developed based on a review of the literature: novelty, non-obviousness, (overcoming) conflict, and numerosity. It then observes that there is is a lack of diversity in invention that transcends the education pipeline and can be conceptualized as the “innovator-inventor” gap - the lower rate at which diverse STEM graduates and workers become inventors: for example, women represent 27% of STEM workers but only 13% of inventors. Redefining “progress of [] the useful arts” - the purpose of the patent system - to include advancing a diversity of innovators, and not just innovation, it argues, is justified on utilitarian and legal grounds, and provides a way to address the gap. Progress, redefined, supports a focus on the demand side - where the law of inventorship limits credit and attribution. Progress, redefined, also highlights challenges on the supply side - where diversity differences with respect to inventor identity, perfectionism, and social networks, for example, in combination with the law and mechanics of inventing, it appears, are limiting inventorship parity, though the use of practices like opt-out and reframing rejections could compensate. The article concludes by discussing several steps for taking progress, redefined, seriously, including: (1) institutionalizing and broadening the Patent Office’s duties and authorities to promote a diversity of innovators and inventors, (2) launching a public-private innovator diversity pilots clearinghouse to support the rigorous evaluation and refinement of relevant policy and practice interventions, like opt-out idea submission and reframing rejections, and (3) creating a periodic, innovator-inventor survey for informing the design of policies and practices for diversifying innovation and inventorship.

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

JEL Classification: K20, L51, O31, O34