Patent Performativity

• Publication year: 2022

Patent Performativity

Dan L. Burk
University of California, Irvine, dburk@law.uci.edu

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PATENT PERFORMATIVITY

Dan L. Burk^*

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TABLE OF CONTENTS

I. Introduction...........................................................................................282

II. Performativity Three Ways...............................................................285

A. Austinian Performativity..........................................................286
B. Butlerian Performativity.........................................................288
C. BARNESIAN Performativity.........................................................291

III. How to Do Things with Patents......................................................294

A. Patent Illocution.........................................................................296
B. Patent Perlocution.....................................................................300

IV. Enacting Patents...................................................................................304

A. Performing Detachment...........................................................305
B. Performing Immateriality.........................................................307
C. Performing Hierarchy................................................................309
D. Performing Extraction..............................................................311
E. Performing Exclusion................................................................313

V. Conclusion................................................................................................316

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I. INTRODUCTION

Patents are typically justified as a means to provide critical incentives for technical progress, and as a vehicle to offer a crucial gateway to recognition and remuneration when commercializing new technologies.¹ The exclusive rights conveyed by a patent are said to offset the effortless appropriability of the patented technology, safeguarding the financial return on investments in technical innovation. The public is said to trade 20 years of exclusivity in return for the development and disclosure of beneficial discoveries. In order to ameliorate the restrictive effects of such exclusivity, patents are reserved for significant new advances, which then pass into the public domain for general use once the exclusive incentive period ends.

The efficacy of patents in achieving these ends is sometimes questioned.² But one failure of patenting that is clearly not in question is the underrepresentation of women in every aspect of the patent system, and their sparse participation in whatever benefits patents in fact confer.³ The empirical evidence of a manifest gender disparity in patenting is overwhelming. Relatively few patents include women as named inventors.⁴ Women constitute a very small minority of registered patent attorneys.⁵ Women who have made a discovery or scientific advance are less likely than their male counterparts to consider patenting.⁶ Women's applications for patents are more likely to be rejected by the United

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States Patent Office.⁷ The deficit of patents in women's hands is believed to curtail their entrepreneurial or business opportunities.⁸

In the face of such compelling disparity, some have begun to respond. Numerous empirical studies have documented different dimensions of the patent gender gap, both domestically and internationally.⁹ Some institutional reactions have also begun to appear. Both the United States Patent Office and the World Intellectual Property Organization have taken note of the deficit in female engagement with patents and have instituted programs either to educate or to invite female participants.¹⁰ A small but growing scholarly literature had called attention to the problem.¹¹ Proposals have been made for procedural or doctrinal adjustments to attract female participation in patenting.¹²

Such efforts, while commendable, are very late arrivals. When recounting the history of action and ideas toward female social equality, we commonly speak of the shifting focus of scholarship and activism in "waves" running from the nineteenth century into the twenty-first. Naturally (and somewhat appropriately) the trajectory of feminist reform is far messier and far less discrete than such divisions would suggest. But if we are not too fastidious about pristine demarcations, we might speak generally of a "first wave" of feminist sentiment, devoted to establishing some basic social parity for women, such as the right to vote, the right to hold property, the right to enter into contracts, and similar formal recognition of female autonomy.¹³ A "second wave" of discourse and action expanded and deepened these efforts, recognizing structural and implicit gender biases in the majority of social institutions.¹⁴ A further "third wave" of

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activity re-envisioned feminist goals, emphasizing "intersectionality" or the connections to broader themes of social justice for subordinated groups.¹⁵

During what we might consider the late second and early third waves of feminist activity, most areas of law came under scrutiny¹⁶ , initially for explicit bias against women, and later, once many of the obvious explicit forms of discrimination had been ostensibly eliminated, for implicit bias against women.¹⁷ Criminal law, family law, employment law, bankruptcy, corporate law, and numerous other areas were examined.¹⁸ That process remains ongoing today. But as I and other commentators have observed, such scrutiny somehow passed intellectual property law by.¹⁹ In particular, patent law until recently escaped any serious consideration of gendering, misogyny, and related bias.²⁰

Consequently, we might regard recent initiatives to include more women within the patent system to constitute largely first wave propositions or at best very early second wave propositions. Examples of these propositions include preliminary, basic, and fundamental efforts to secure equal participation and recognition for women as inventors, patent agents, and patent administrators. Although the patent system entails no explicit prohibitions on female participation, and there at present is no explicit social stigma in female patenting, we are only now beginning to lay the foundation that would allow gender parity in the patent system. And, given past experience in laying and building on such foundations, we might expect that, as has proved to be the case in every other area of law, equal participation will be a contested and contestable metric, and meaningful female participation will be stymied by a complex network of underlying social impediments.

Some scrutiny of patents beyond fundamental, first wave propositions is therefore needed. Without accessing the frameworks provided in other areas by second- and third-wave feminist scholars, efforts toward gender equity in patent law, like past efforts in other areas, are likely to founder on unseen obstructions in the institutional structures being reformed. Patent law may be well behind in correcting its biases, but tardiness offers the opportunity to learn from what has been done elsewhere. In particular, to paraphrase Judith Butler, before embarking on reform of the patent gender gap, we ought to consider the futility of a remedial program that seeks to radically transform the innovation situation

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of women without first considering whether innovation is socially constructed in such a way that women are, by definition, handicapped in innovating.²¹

The purpose of this essay is therefore largely remedial. My thesis here is that patents are performative, in the sense that they enact what they disclose, in the sense that they create their own social facts. In order to demonstrate this, I trace the development of performativity theories, from their Austinian beginnings to their application as a general theory of action in the social world²² , showing how each perspective illuminates the nature and function of the patent system.²³ I then illustrate what it means to perform patenting, to perform invention, and to perform innovation within the constraints of our present system, suggesting how patenting is structured to continually recreate its own fundamental assumptions. Recognizing the patent system's performative character in turn suggests that closing the gender gap will not be a simple matter of encouraging more female scientists and engineers to think about patenting. Finally, I close with some thoughts as to how this understanding might guide and temper future efforts to address the patent gender gap.

II. PERFORMATIVITY THREE WAYS

The concept of performativity has evolved over time; in fact, it may be legitimately said that the term now encompasses at least three different meanings or usages. The initial concept labeled as performativity originated with John Austin's influential How To Do Things With Words, in which he proposed a framework for considering expression as social action.²⁴ Austin's insights were later expanded and re-oriented by Judith Butler into an equally influential framework for considering the formation of identity in a broader social context.²⁵ Finally, these analyses provided the foundation for general sociological application of their principles to understand the fabrication of social reality.²⁶ Here, I briefly sketch the major features and implications of each of these approaches, and their intersections with one another, as background to examining how patents behave within each of their frameworks.

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A. AUSTINIAN PERFORMATIVITY

Austin was interested in defining and exploring qualities of language, and in particular in understanding classes of expression that he termed "speech acts," which are not so much communicative or descriptive as they are operative. His work divides expression into constative and performative categories; the former comprises statements about the world, such as "the United States Court of Appeals for the Federal...