invention

Women and Science
The Exclusion of Women Inventors
from IP Rights
Rethinking: Knowledge Definition
Dr. Shlomit Yanisky-Ravid
Ono Academic College,
Law Faculty, Israel
The Shalom Comparative Legal
Research Center
WIPO
Innovation and
Creativity of
Women
Warsaw
3/2010
American University Law Journal of Gender, Social Policy and the Law
Lawrence H. Summers - Harvard
University former President
On January 14, 2005, in a conference discussing the
positions of women in science and engineering
faculties at top universities:
There is a difference between men and women in
mathematical and scientific ability.
The reason for having less women in the fields of
technology is due to their lack of biological abilities.
Men – Mathematics
Women – Language
The differences between the genders:
Carol Gilligan’s approach
Catharine MacKinnon’s Approach
Does Patent Law use these differences to favor men in the
allocation of rights, power, capital and honor?
Does Patent Law exclude women from having these benefits?
I think it does.
[email protected]
Outline: Patent System Excludes Women
4 part model
Part 1: The first part presents Figures which show the
miniscule percentage of women inventors
Part 2: The second part analyzes Patent Law as the cause
of gender bias:
“Invention” and “inventor” definitions don’t include
‘women’s life experience’.
The legal norm of “service invention” attributes all IP
rights to employer (mainly men).
Part 3: The third part gives explanations taken from the
Social Science field about difficulties women face in the
workplace.
Part 4: The final part includes guidelines for legal and social
reform.
Part 1. Figures:
The Percentage of
Women – Men – Firm Inventor Applicants
Between 2000-2005 ILPO
80.00
60.00
40.00
20.00
0.00
Men Inventors
Women Inventors
Firms
Year
Percentage
Women 2%, Men 33%, Firms 65%
The Percentage of
Women - Men Inventor Applicants
Between 2000-2005 ILPO
105.0
100.0
95.0
90.0
85.0
80.0
75.0
70.0
65.0
60.0
55.0
50.0
45.0
40.0
35.0
30.0
25.0
20.0
15.0
10.0
5.0
0.0
Men applicant
Women applicant
2000 2001 2002 2003 2004 2005
Year
Percentage
Women: Less than 6%
Women-Men Employee Inventors
Acknowledged by Firm Patent Owners
ILPO
13%
Male
Female
87%
The Percentage of Women and Men
Inventors Employed by Firms
Working Alone
or on R&D Teams
in 2004
Women
- Alone: 3% Team:
‫אחוז ממציאות וממציאים שכירים מאוזכרים כעובדים‬
Men - Alone:
‫ בדד‬21%
‫בצוות או‬Team:79%
100.0
‫לבד‬
50.0
‫בצוות‬
‫ממציאים‬
Male
‫ממציאות‬
Female
0.0
Part 1 - Figures - Summary
Sara Lipman – Power2b Technology
Photo: Isaac Harari
[email protected]
Part 2 - Patent Law and Gender Bias
Androcentric Definitions in Patent Laws
“In a different voice” (Gilligan)
TRIPS Agreement Section 27
The definition of “invention”
focuses on products or
processes that contain
technical aspects and are
capable of industrial application.
Part 2 A. The Definition of “Invention”
TRIPS Section 27: “…patents shall be available
for any inventions, whether products or
processes, in all fields of technology, provided
that they are new, involve an inventive step and
are capable of industrial application.”
Israeli Patent Law, Section 3:
“Patentable invention” is defined as an
“invention,
in any field of technology …
which is capable of industrial application”
Part 2 - Patent Law and Gender Bias
Androcentric Definitions in Patent Laws
“In a different voice” (Gilligan)
The more the definition of “invention”
focuses on “products” or
“transformations” that contain only
machines, technical and industrial
aspects, the more it is likely to
exclude women.
Part 2 - Patent Law and Gender Bias
Androcentric Definitions of Patentable Inventions
Process (Vs.) Machine
35 U.S.C. 101 Inventions Patentable.
Whoever invents or discovers any new and
useful (1) process (vs.)
(2) machine, (3) manufacture, or (3)
composition of matter, or any new and
useful improvement thereof, may obtain a
patent therefore, subject to the conditions
and requirements of this title.
Part 2 - Patent Law and Gender Bias
In Re Bilski (Fed. Cir.)
Process (vs.) Machine
Majority Opinion - Paul R. Michel (Chief Justice)
Based on former Supreme Court decisions:
Patent-eligible under 101 if: (1) it is tied to a
particular machine…
…use of a particular machine provided “the clue
to the patentability ...”
Transformation of articles: one physical substance
is transformed into a second physical substance.
Signal data representing tangible physical objects
Bilski's method claims … “cannot meet the test
because they are not physical objects or
substances, ...”
The Definition of “Invention”
I suggest re-examining the definition of
“invention” in patent laws world-wide. In
most countries the definition of “invention”
emphasizes the machines-industrialtechnological elements.
This definition currently favors men.
I claim that this definition does not reflect the
contribution of women to human knowledge
and welfare.
One of my suggestions is to change the definition so
that it includes inventions from women’s life
experiences in areas such as: education, psychology,
social and even business methods (fields).
Women’s Inventions
What is Knowledge?
 Improving learning abilities
(knowledge)
 Detecting cognitive disabilities
 Psychological methods
 Methods without machines
 Social Inventions – Improving life
style (welfare) - WIPO project
The Definition of “Inventor”
The Women Assistant Problem
The definition of “inventor” according to AngloAmerican courts focuses on the main inventor,
ignoring the role of (women) assistants in the
invention process.
2 claims of women in R&D teams vs. their
employers regarding their recognition as
inventors.
Dr. Cynthia Webb vs. Weitzman Institute of Science –
“Copacson”
Sarit Rotem vs. Teva - “Samplinc”
The results:
The contributions of these women were erased.
These women do not receive special consideration.
Part 2 B. Patent Law and
The Hierarchical Distribution of Power
(MacKinnon)
“Service invention” is the legal
norm that grants the employer
all patent rights to his/her
employees’ inventions.
UK Patent Law, 1977, Section
Employees' Inventions
Right to
“(1) … an invention made by an employee
shall, as between him and his employer, be
taken to belong to his employer …(a) it was
made in the course of the normal duties
of the employee or in the course of duties
falling outside his normal duties, but
specifically assigned to him, and the
circumstances in either case were such that
an invention might reasonably be
expected to result from the carrying out of
his duties;”
Israeli Patent Law, 1967, Section 132(a)
I suggest reconsidering the Anglo-American
legal norm of “service invention”.
This legal paradigm discriminates against
women that work mainly as employees
on R&D teams.
Even if women penetrate patent-rich fields,
they will not gain ownership of their
inventions.
Allocating some property rights to women
employee inventors in 2002 could have
doubled the percentage of women patent
owners for that year.
Part 2. Patent Law and Feminism
Summary
Assistants
Women’s Activities
Employees
Service Invention
Patent Eligible Matters
Part 3. Social Science
Explanations
Horizontal and vertical segregation in
professions and in academic studies
Women’s preferences
Conflicts between motherhood and
work
Difficulties women face in the
workplace [hostile environment]
Are these the reasons or the results?
[email protected]
Part 4. Legal and Social Reform
The purpose: To promote gender equality in the
patent field. The suggested reform includes:
Redefining “invention” in the TRIPS
and Patent Laws
Re-examining the “service invention”
legal norm
Enhancing the moral rights of
inventors by noting the inventors
names in Israeli Patent Office
publications
Affirmative action for women inventors
[email protected]
Thank You !
[email protected]
Part 2 - Patent Law and Gender Bias
In Re Bilski (Fed. Cir.) - Process
Dissent - Justice Pauline Newman
The PTO should have allowed Bilski’s patent
The court “..redefining the word “process” in the patent statute, to
exclude all processes that do not transform physical matter or that are
not performed by machines.
The court thus excludes many of the kinds of inventions
The word process used by the majority directly contradicts the statute,
the precedent, and the constitutional mandate to promote the useful arts
and science.
The court’s exclusion of specified process inventions from access to the
patent system is achieved by redefining the word “process” in the patent
statute.
Court has consistently confirmed the constitutional and legislative
purpose of providing a broadly applicable incentive to commerce and
creativity, through this system of limited exclusivity. Concurrently, the
Court early explained the limits of patentable subject matter, in that
“fundamental truths”
Part 2 - Patent Law and Gender Bias
Science - Process
U.S. Const. Art I 8:
To promote the progress of science and useful Arts, by securing
for limited Times to Authors and Inventors the exclusive Right to
their respective Writings and Discoveries.”
U.S.C. 100(b)
The term “process” means process, art or method, and includes
a new use of a known process, machine, manufacture,
composition of matter, or material
This court’s redefinition of “process” as limiting access to the
patent system to those processes that use specific machinery or
that transform matter.
Re- Bilski?
One option is that The Supreme Court focuses on
machine and technology.
Part 2. Patent Law and Feminism
Summary
Science
and
Useful
Arts
Women’s Activities
Process
Service Invention
Patent Eligible Matters