Academic journal article Duke Journal of Gender Law & Policy

Diversity Levers

Academic journal article Duke Journal of Gender Law & Policy

Diversity Levers

Article excerpt


Intellectual property, particularly in the form of patents or copyrights, is generally understood as providing a means of legal appropriability: encouraging beneficial new creations by securing the value of investments in such creations. (1) Because the exclusive rights conferred by a patent or copyright deter unauthorized copying or misappropriation of creative work, these intellectual property regimes are believed to foster innovations that might otherwise be under-produced. However, it is increasingly clear that in many instances, creative production is deterred by social rather than economic impediments. A growing body of scholarship indicates that social biases may erect unexpected and underappreciated barriers to the goals of intellectual property systems. Indeed, intellectual property laws themselves might inadvertently deter the creative activity of certain creators, such as women or racial minorities, and may skew new innovation away from disadvantaged communities that most desperately need its benefits.

In this article, I explore how existing features of intellectual property law might be deployed to address such impediments to innovation. In previous work, I have discussed certain doctrinal features of patent law, dubbed "policy levers," that allow the patent system to be modulated to match the innovation incentives needed in different economic sectors. (2) Here, I argue that the same mechanisms may be used to address social impediments to innovation. While such "diversity levers" might be used to correct a variety of social failures in the patent system, in this article I will focus my discussion on the pervasive deficit of patenting among women who are engaged in technical research. A substantial and growing body of empirical literature demonstrates that women patent and commercialize new inventions at only a fraction of the rate of similarly situated men, indicating a serious failure in the effectiveness of patent law's innovation incentive. (3) I offer as an illustration as to how patents might be calibrated to address this failure the example of a particular policy lever that modulates patent law's non-obviousness requirement. I conclude with some thoughts on how other features of the statute might be used to address similar social impediments deterring full participation in the innovation system.

I. Patents for Humanity

In 2013, the Obama Administration implemented an experimental program through the United States Patent Office, dubbed "Patents for Humanity." (4) The program, now in its second year, was implemented to encourage innovation in the service of economically impoverished and under-served populations. The "Patents for Humanity" program is structured as a competition in which companies that hold patents for life-saving or critical infrastructure technologies are publicly lauded for deploying such patents in the broader public interest, especially in the service of disadvantaged or developing populations. Such award-winning activities have included development and distribution of malarial drugs; development of high-protein, vitamin-enhanced sorghum; and development and distribution of water purification packets, all targeted toward developing nations. (5)

This program's recognition of humanitarian patent activity is not simply honorary, but includes a sort of patent prize: Patent holders who receive these awards are granted a special certificate that allows them to accelerate examination of a subsequent patent through the United States Patent Office. In essence, this is a type of prize for innovative activity that is particularly meritorious along a particular dimension--that of humanitarian relief. (6) These certificates might become even more valuable under legislation recently introduced by Senators Patrick Leahy and Chris Coons that would make such acceleration certificates transferable, essentially creating a secondary market in such certificates. …

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