Gender Bias Persists in the Global Patent Landscape

Gender Bias Persists in the Global Patent Landscape

Serena Nath is an IPilogue Writer and a 2L JD candidate at Osgoode Hall Law School.

According to a recent study published in UNSW Law Journal, feminized names are less likely to be granted a patent in Australia. The study investigated female patenting rates in Australia over a period of 15 years. Although similar studies  have been conducted in Europe and the United States, such a study had not been done in Australia. However, recent advances in computing technology and open data polices allowed the study to be done. Furthermore, studies performed by the US Patent and Trademarks Office typically analyzed patents from a majority of US residents. However, this Australian study better reflects worldwide applications because most Australian patent applications are from international inventors who have filed patents in several jurisdictions.

In order to investigate gender bias, researchers analyzed 309,544 patent applications from 2001-2015 and then categorized approximately one million inventor names based on whether they sounded female or male. The study revealed that male sounding names were much more likely to have their patents granted. Additionally, having an increased number of male sounding names listed on the team inventors correlated with an increased likelihood of having the patent granted. Patent applications with an increased number of female-sounding names listed on the team of inventors did not significantly correlate with a change in success of patents granted.

The study postulated as to why this gender bias may exist. Researchers considered that women were working in technical fields that typically have a lower patent success rate, such as life sciences. Their investigation found that a majority (greater than 60%) of female inventors were working in life sciences. In particular, women were concentrated in four technical fields: chemistry, biotechnology, pharmaceuticals and medical technology. However, once the data was statistically controlled to account for the effect of the patents being in a less patentable field, it was determined that inventors with male-sounding names were still more successful in obtaining patents than those with female sounding names.

This study demonstrated that despite the advances women have made in obtaining positions and credit in STEM fields, there is still a gender bias against women in obtaining patents. Similar studies in the US have hypothesized that a major reason for this disparity lies with the patent examiners and that they are biased against women, and thus suggest that the patent prosecution process should name-blind applications to hide the gender identity of the inventors.  However, some feminist legal scholars believe that the reasons for this disparity go deeper. Some scholars argue that certain intellectual property agreements, such as TRIPS, exclude domains of female inventorship by focusing on “mechanical, technical, and industrial aspects” of “products and processes.” Other scholars argue that female patentees have less funds, stamina and mentoring to deal with objections from the patent office, which may result in abandonment of a patent application and thus less accepted applications overall.

Several studies and real life experiences attest to the fact that the gender bias still exists in academia and life science disciplines. Overall,  gender bias observed in the patent landscape appears to be at least partially a downstream effect of the institutional bias in STEM.