Michael John Long is an LLM candidate advancing to the PhD at Osgoode Hall Law School
In his recent essay, Do Patents Have Gender? , intellectual property scholar Dan L Burk admits upfront that the title question ‘strikes many readers as improbable, even nonsensical.’ However, the posited question aims to introduce just how an intellectual property system, which is designed to grant sets of exclusive rights, can include elements of gender. As Burk notes, feminist scholarship over the past few decades has illuminated the ways in which gender plays a role in many theories and practices of law; including criminal law, civil rights, family law, employment law, tax law, and so on.
In some situations, the utilization of feminist scholarship has shed light on overt discrimination or inequality. In others, feminist commentators have helped to clarify less obvious systemic biases in the law, all of which ‘serve to reinforce stereotypes, or perpetuate oppressive power relationships.’
The influence of feminist scholarship is now beginning to be felt in the field of intellectual property. Osgoode Hall Law School’s Professor Carys Craig works within this context, examining copyright law from a feminist perspective. And yet, feminist perspectives have been slow coming to the field of patent law; while ‘feminist intellectual property scholarship itself is underdeveloped… feminist patent scholarship is almost unheard of.’ The aim of the essay then is to incite more examination of the patent area of intellectual property ‘where feminist insights have to date been underdeveloped.’
The way in which this task is completed in the essay is through the consideration of the ways in which the patent system might include gender bias. To discover the existence of such bias within the patent system, Burk examines ‘the objective doctrines of patentability embodied in the legal fiction of the PHOSITA, the Person Having Ordinary Skill in the Art.’ In considering the problem of ‘objectivity’ and ‘objective’ legal standards, through feminist scholarship, Burk suggests that the PHOSITA standard does in fact include the gender characteristics found in other areas of law. In the close of his essay, he notes that although shifting away from an ‘objective’ standard for patentability would involve substantial changes in patent doctrine, a ‘tug and pull between a new obviousness standard and a new disclosure standard could shift patenting in differing directions.’
Burk’s essay speaks acutely to a systemic problem within intellectual property law, among other fields. The moral which seems to drive this examination is found in the idea that those who make the law do so according to their own interests and those who are not present are those not represented. This provides a means to critique issues that exist within intellectual property regimes which may stem from laws which are built according to the interests of those who create them. In response to the particular manifestation of the moral which drives this essay, Burk has successfully shown that ‘although the conversation in second wave and even third wave feminism might seem to have passed intellectual property by, the tools provided by feminist scholarship are useful in critiquing and evaluating characteristics of intellectual property law that might otherwise go unexamined.’