WIPO Seminar Discusses Intellectual Property And Gender

Gender differences persist in the field of intellectual property, but there are signs of change, and new proposals are emerging for bringing greater balance, a US professor told a gathering at the World Intellectual Property Organization this week.

Prof. Dan Burk, of the University of California, Irvine, discussed the most recent empirical research on gender issues in intellectual property law as well as potential ways forward to help ensure equitable systems of promoting innovation and creativity.

The 3 December event was titled, “Does Intellectual Property Have Gender?” The video of the event has now been added to the event website.

While the research on gender issues have, for several decades, influenced many areas of law, such as human rights, criminal law, family law and employment law, only recently researchers have begun to study the question as to whether intellectual property law might have gender bias. Most of this research has been done in the patents area primarily because there is an application system in place, which allows to gather data and which does not exist in the copyright area.

Burk began his lecture by looking at some historical facts. “There are very deep roots in society assuming that women cannot or should not be involved in creative activities,” he said, quoting Jean-Jacque Rousseau and Immanuel Kant.

Historically, he continued, it was not considered socially proper for a woman to be an inventor and many patents filed in the 19th century were inventions of women filed under the name of their husband, father or brother.

Although there is no explicit discrimination in the patent system, copyright system or trademarks, “we might be concerned if we have unintentionally created a situation where the laws or systems that we have entail some type of bias,” Burk said.

He cited empirical studies that suggest the gender gap in relation to patents remains large. Hunt et al (2012) found that just 7.5 percent of patent holders are women, and just 5.5 percent of those holding commercialised patents are women, he said. More female participation is witnessed with regard to patent attorneys and patent agents, 18 percent and 26.1 percent, accordingly (Kahler, 2011).

Burk also referred to research conducted by the European Patent Office (EPO), looking at numbers of female inventors across member states of the European Patent Convention as well as within different industries.

Out of all EPO countries, Spain had the largest female participation in patent activity with 7.5 percent in 1991 and 14.2 percent in 2005. It appears that while women file more patents in the pharmaceutical industry, the number is much lower when it comes to mechanical or electrical engineering.

Mention was also made of studies (Ding et al., 2006, and Whittington & Smith-Doerr, 2005) examining gender differences in patent activities in the area of life sciences, finding that that women faculty members patent at about 40 percent of the rate of men.

According to Burk, there are several possible explanations to this phenomenon: female scientists do not think about commercialisation of their inventions; they tend not to promote their research projects; and they have less access to social networks and venture capital.

Burk concluded his presentation by suggesting how to address the gender gap issue in intellectual property. In particular, stressed the option of adapting the patent law and revising the patenting standard to include the notion of a “woman of ordinary skill in the art” as has been done in other areas of law, such as US employment and tort law through the “reasonable woman” metric.

For more from Burk on this subject, see:

Dan L. Burk, Do Patents Have Gender?, 19 American University Journal of Gender, Social Policy & the Law 881-919 (2011) available at http://digitalcommons.wcl.american.edu/jgspl/vol19/iss3/6/

Another past article on this subject can be found here.

Image Credits: Calvert Litho. Co., lithographer. Head-and-Shoulders Image of Brunette Woman, Facing Right, Wearing Large Blue Hat, 1892. Prints and Photographs Division, Library of Congress. Call Number POS – TH – STO, no. 11 (C size).