Ann Shalleck, WCL, introductory remarks: We have to change the conference name to “mapping the connections.” As Google reminds us, there are lots of ways to map territory. These papers point out connections that seem obvious once they’re identified; what’s amazing is that the gender aspects have remained suppressed for so long. Dan Burk, for example, discusses the gendered characteristics of the isolated inventor and the isolated invention. Jessica Silbey uses concepts of origin myths – think of “conception” and realize this has something to do with gender, which she explores through narrative theory. Christine Haight Farley looks at trademark law’s concept of branding as feminine, and the analogies between dilution and the 19th century tort of damaging women’s reputations, which was a tort for violating a property right of the man who controlled the woman (husband, father).
Dan Burk, Minnesota, Do Patents Have Gender? Earlier version summarized here. He begins with the light bulb, invented by Edison, one of the most iconic inventors in the mythos of innovation. Edison was working in an incredibly crowded field of prior art. People were using most or all of the elements he combined in the light bulb. But we never hear about that in the iconic narrative. We also know that Edison had an enormously skilled staff – physicist/mathematician, self-taught scientist, master craftsman, Swiss mechanic (without whom Edison shut down the office), electrician, others. And there were others involved – a lawyer who worked on the patent, found financing, managed personnel, saw the potential of electric lighting, lobbied government for tax breaks, etc. Without his input, the light bulb wouldn’t have existed, but he’s not an inventor.
None of this fits with the legal fiction of the PHOSITA, which defines both the inventor and the invention – an inventor is by definition a person of extraordinary skill in the art, who saw something that wouldn’t be obvious. Compare to the feminist critiques of the “reasonable person” in tort law, who is actually the “reasonable man” (who kills over adultery, lets you drown even when saving you wouldn’t be risky, and is autonomous and separate). Feminist tort standards emphasized responsibilities, communities, standards of care.
Thinking of PHOSITA in the same light, the same assumptions are built in. The inventor is in splendid isolation from everything but a rarefied conception of prior art, without Edison’s interactions with lots of people, including those working on the same problem. PHOSITA seeks to overcome the prior art, not to rely on it.
Feminist concepts challenge patent’s ways of knowing, encouraging us to look at situated knowledge and at IP responsibilities rather than just IP rights. This could go beyond patent misuse to other obligations to the community, recognizing both the contributions of the inventor and the contributions of the community.
Jessica Silbey, Origin Myths: The Mystical Beginnings of Intellectual Property Law: This was a great presentation, much enriched by the interaction between the oral portion and the complementary/contrasting images on the slides. My written summary can’t do it justice.
Silbey offered a cultural analysis of IP – IP can be understood by means of a narrative explanation for the structure and justification of IP, built in part around gendered heuristics. That the heuristics are unspoken and understood makes them powerful. The gender ideology is implicit and behind the scenes, and it’s also not the whole story, but it’s related to systematic disadvantages.
Julia Levy’s story: This begins with a patent arising out of collaboration between Mass General Hospital & another hospital and a small Vancouver biotech firm, creating a new drug for treating macular degeneration. It’s a multibillion-dollar drug now sold by Novartis. It’s photosensitive, activated by light – it only activates when you shine a laser light on the affected body part. The inventors assigned ownership rights to institutions. Levy’s company wanted exclusive rights, and the company QLT was going to pay a royalty. MGH made a deal, but the other hospital didn’t, and sued. Because the parties were joint owners, each could make and sell the product without the others’ consent, so the other hospital had to show that QLT wasn’t legitimately on the patent. And that meant showing that Julia Levy, of QLT, wasn’t a real inventor.
Task: tell a story how Levy was a joint inventor who shared in every aspect of the invention. But in a world of collaborative research, in which people contribute without working in a lab together, the world is changing. Inventors aren’t solo mad scientists. How can patent law recognize these realities? The judge and jury might be preoccupied with the mad scientist, even though the patent law has been amended to reflect modern realities. The “a-ha!” moment that only a single person can experience – “conception,” the formation in the mind of an idea – also a gendered concept. Reduction to practice is important, but the mental event is key – this is an origin story. But what of labor? (Here she refers to the reproductive sense as well.)
Origin stories explain where we come from and give us guidance about where we go. IP laws exist to glorify moments of authenticity, discovery, etc. As litigators, Levy’s lawyers needed to give a mythical origin to the drug in her mind.
Origin story here: When Julia was a young girl growing up in British Columbia, she spent summers playing in cow parsley, and noticed that her skin was more susceptible to sunburn. She discovered the oil was photosensitive. When she became a biochemist, she wondered if its properties could be used in medicine. When her mother developed macular degeneration, she searched for ways to treat it by targeting the small blood vessels of the eye, and combined the concepts. She was a real inventor.
Most origin stories are political, describing how societies or communities came into being and naturalizing certain heirarchies. Origins essentialize, making identity permanent, unalterable and eternal. Levy’s story is also political – justifies a particular hierarchy of people. It legitimates what would otherwise be perceived as inequities in putting her on the same patent as people who labored for years on operationalizing the insight into a drug that could actually treat patients. She contributed to only two claims of a patent with more than a dozen. The hospital’s claims of exploitation and unfairness can only be rejected by finding Levy to be more entitled to rights.
The hospital also signed statements under oath of shared inventorship – like a marriage contract. The argument here is that if bad things happen (like women being more likely to be poor, and children with single mothers living in poverty), that’s a natural result of an equal starting point. Just because the hospital expected better – just because it was a small teaching hospital that trusted the big biopharm company to treat it right – is no reason to intervene on its behalf. The hospital lost its common-law claims of fraud and coercion. This is one aspect of origin stories: they tend to disguise the violence at the beginning of a relationship.
The origin myth of IP is also a myth of citizenship – rights go only to the special who deserve them. In patent, an inventor; in copyright, an author; in trademark, a person who produces more choice for the consumer. But this naturalizes a system of power relations, where consumers are not free from the marketplace, even as the origin story makes us think that we’re freely engaging in unmanipulated transactions.
Consider who benefits from recent changes in IP regimes. First-to-file proposal for patent (big pharma), term extension (Disney), dilution (big TM owners). More naturalization of power? We need to investigate the justifying stories and the heroes of those stories.
Christine Haight Farley, The Feminine Mystique of the Brand in Trademark Law Today: Here’s my report on her earlier talk at Thomas Jefferson. The object of TM law’s protection is changing – from the product/service to the brand. The brands are the product – or even the cultural identities associated with the brands. And the brand is feminine.
Summary of her underlying argument: Dilution law is radical and wrong. Shifting from protecting the consumer to protecting the brand goes along with a shift from tort to property, with lots of costs to speech and competition. There’s no real harm that needs to be addressed.
So why would we have a radical change in TM law without a real threat? Because TM owners cried that their valuable brands were vulnerable to the attentions of bad actors.
In defamation law, people are generally required to put a dollar value on harm to their reputations. If people can do that, why can’t brands, which are valued all the time? Yet in dilution cases, companies can’t put a dollar value on harm suffered – Farley says it’s because they haven’t actually suffered any harm (e.g., Pentium processors have suffered no harm from Pentium real estate). There has been an exception to the defamation rule: historically, women couldn’t prove economic harm from defamatory statements about chastity, so the law didn’t make them do so.
Victorian premises of that tort map on very well to dilution. Women are vulnerable; brands are vulnerable. Women’s reputation is men’s valuable property, just as brands are valuable property. The value of the reputation was in purity, which carries over to brands today – purity of meaning, unencumbered social meaning. The harm to women wasn’t market-based but relational and associational, and that’s what brand managers argue now about dilution injuries. Harm is inevitable: if you talk about a woman’s chastity, you harm her; if you create associations with a mark, you harm it.
Marks are in fact very strong – they have strong legal protections without dilution, and they have very high values. But they aren’t invincible.
One irony: treating overly sexed brands like Victoria’s Secret as Victorian prudes. They’re ubiquitous, but you can’t touch them. They’re selling sex, but you can’t buy it. Lots of dilution cases involve sexually offensive uses – “lewd, immoral and unacceptable,” according to Starbucks in its attack on the “Consumer Whore” parody.
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