Kara Swanson, Northeastern University School of Law – IP and Gender: Reflections on Methodology and Accomplishments
Literature review: from the footnotes to the text. Personal experience writing and publishing in gender & IP—future orientation of how we can make progress. (1) Translating insights of feminist/queer theory into IP and info law; (2) transcend boundaries to create new insights; (3) transfer these to scholars who don’t write or think about gender, to legislatures, to classrooms, to the PTO.
Accomplishments: Naming and claiming the past to celebrate, use, and value it. Gently urge that we harness the power of the citation to cite each other. These symposia have been a rousing success. Stuff, community, and personhood, as Rosenblatt says. Results in 3 distinct areas. Bibliography of IP and gender scholarship; this is absolutely endless especially with int’l and interdisciplinary approach fostered by this group. 33 North American law reviews – ½ of law review scholarship on IP & Gender was published in AU’s journal, and others got their origins here. Other scholars first published here have gone on to write more in the area. Starting to pop up in general and tech law reviews; Irene Calboli’s new book on diversity in IP. Lively area of research, building on each other.
Content: where to go next? 3 categories of work now: (1) Analyzing gender disparity in IP systems; this is old news to us but not to others. Women receive fewer than 10% of US issued patents. What about rates of © registration and TM registration by women-owned businesses? (2) Analyzing IP claims that involve gender and sexuality. (3) Analyzing the gendered nature of IP doctrines themselves. Most important: critical lens to IP as a legal system—mapping the connections, and how IP perpetuates gender/heteronormativity. Those dynamics are so unknown to the mainstream in IP that even raising the issues can generate huge anger and controversy. Women’s creativity: supposedly broad definitions of creativity become narrow! IP law is no different than any other area of law in being affected.
The personal is political: experience writing/speaking over 10 years. There is resistance to the idea of connections between IP and gender. To get to our goal, developing IP that promotes social justice, we need to persuade, break down resistance, and shift conversations. How have we not yet succeeded? Translation, transcendence, and transmittal. Translation: taking knowledge from one discipline and bringing it to another; bringing feminist legal theory to a room of IP scholars. This is preaching to the choir here, but we can practice translation by taking our scholarship to fora outside our comfort zones, whether that’s to law & econ-dominated conferences, or feminist conferences, or even conferences w/few or no lawyers. We can increase visibility.
Transcendence: Now that we know how to map the connections, we need to recraft IP rather than simply describing connections.
Transmittal: How do we persuade? Not just translation but transmittal—broadcasting to audiences divided by methodological and epistemological commitments. Scholars who don’t work in gender, students, and legislatures. We need to think more about this.
Example: her historical example of a classic patent case w/a female plaintiff, Egbert, about the corset. Teaching the case provoked giggles from students, because the corset seemed erotic and trivial. Casebook had vaguely salacious statement about her relationship with the inventor. Placed the article in a feminist journal—but need to communicate w/patent law community. Perceived as being w/o broader implications other than background color; law and economics influenced patent scholars just rejected historical methodology. Project’s origins in the classroom: the disturbing way it’s portrayed in casebook and in classroom. Need to reposition case—emphasizing sex/gender in this case seems to further trivialize and diminish Egbert. Now, can teach against the casebook. Also, scholarly publication may also require tweeting, congressional testimony, other written fora to practice transmittal. How can we reach the audiences inherently most resistant to our conclusions? Feminists must marry theory to practice, an orientation familiar to lawyers.
Silbey: Hierarchy of methodology within the study of IP is an issue.
Swanson: Yes. Goal: convince empirical legal studies folks that historical work is empirical. More than counting things.
Chon: How to make this more inclusive? Transmittal is also about creating a larger community to hear the conversation.
Swanson: Mosaic conference at Marquette: Practitioners included.