Viewing the Patent System Through the Lens of Feminists

Abstract

The feminine inventions in patent litigation had showed biases caused by gender factors. In particular, Bowers, Names, and Maynard had revealed certain biases existed in litigations because they seemly undertook corset as witness. However, they are not patent cases even though they involved with gender factors. Feminists argued that, in Cohn, the Justices had unselfconsciously utilized their masculinity by construing the words of a patent specification to describe an invention related to femininity. This article agrees that the U.S. patent litigation system may not be a gender-free zone in this regards, but this contention is not necessary true as applying to the U.S. patent prosecution system. And, the article suggests that the Egbert case was more of a case illuminating the discretion to the justices of the US Supreme Court upon determining the establishment of public use and did not essentially contain a gender issue to the patent system. Further, this article suggests that the PHOSITA is merely a neutral legal-fiction established to determine the existence of non-obviousness, there is no ground to connect it with a gender issue. Feminists argued that the Myriad case had showed the patent law hindered genetic testing for breast cancer susceptibility. And, feminists asserted that feminine inventions to female are more fallen into public domain. For example, more traditional forms of gendered labor such as cooking and making clothing do not count as new, novel, and industrial. But, if the public domain issues are managed to cover traditional forms of gendered labor, then feminists would essentially argue to expand the eligible patent matter. Statistics may conflict with ＂dualism doctrine＂ suggested by feminists because the percentage of female inventors who have design patent, which fallen within the scope of feminine technologies, has the lowest figure. Additionally, the small percentage of female engineering graduates indicates the ＂difference claim＂ should be taken into consideration, and in return challenge the arguments provided by feminists about their critique to science and technology because education system is a neutral one which provides equal opportunity to both male and female students. And, since the science and technology are factors significantly correlated to patent system in this regards, therefore, feminists should have no ground to argue any failure to the patent system based on the claiming of gender problem.