Do Patents Have Gender

Dan L. Burk, UC Irvine School of Law


Patent law offers a set of exclusive rights to innovators, awarding such rights for inventions that meet certain statutory criteria. The statutory requirements for invention incorporate purportedly objective criteria against which new technologies are measured for patent eligibility. For example, inventions are assessed from the perspective of the fictional “person having ordinary skill in the art” (PHOSITA) for compliance with the statutory requirements of obviousness, enablement, and written description.

Feminist scholarship has previously questioned representations of objectivity, as purportedly neutral criteria may be oriented toward a rational, masculine default that is in fact anything but neutral. Previous scholarship has disclosed such bias in fields including both the legal and scientific standards that intersect in the patent statute. These analytical tools may yield similar insights when applied to patents. In particular, feminist insights regarding situated knowledge may prove to be helpful in understanding the inherent assumptions of the patent system, as well as the effects of such assumptions.