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.
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