Excerpted From: Sophia Iams, Patently Biased: A Discussion of Historical and Systemic Causes of Racial Disparity in Patent Law, 27 University of San Francisco Intellectual Property and Technology Law Journal 199 (Spring, 2023) (189 Footnotes) (Full Document Requested)


SophiaIamsThe United States has a long and storied legal tradition that has allowed for both statutory and common law frameworks to develop and evolve separately. Statutory laws at the federal, state, local and municipal level are continuously created, revised and removed. Over the past 250 years, common law has evolved as a result of the judiciary and legislative branches setting legal precedents and scholarly suggestions. Decisions by Federal and State Supreme Courts have interpreted the meanings of the statutory and common law systems and have also created the boundaries of the application of those laws. This legal history and process, which is by no means happenstance, was constructed to account for change meaning it should allow for fluidity and dynamism in the creation, interpretation, and application of laws.

Unfortunately, the United States has an equally long legal tradition of racial bias. There have been numerous expressly racially biased laws promulgated throughout the United States. Among the earliest was the “Three-Fifths Compromise” established in 1787 which treated each enslaved African as only three-fifths of a person for representation in the House of Delegates. In 1857, the Supreme Court essentially held that Blacks were not citizens and thus were not afforded protection under the Constitution in their infamous Dred Scott v. Sandford decision. Even as late as 1967, there were sixteen states with explicit miscegenation laws against interracial marriage, all of which were finally held unconstitutional in Loving v. Virginia. Since then, there have been more subversive structures used to disenfranchise, dehumanize, and depress people of color, including voter suppression, redlining, and intellectual property law.

Intellectual property--specifically patents and copyrights--is expressly protected by the U.S. Constitution. The evolution of intellectual property law, concurrent with our country's laws, has been laced with both overt and covert elements of racism. Not only was the Dred Scott decision used to bar Blacks from the personhood required to qualify for patent protection, but the U.S. Patent Office also declared that enslaved Blacks could not hold patents. As the “promotion of progress,” as mandated by the Constitution, became embedded in our national psyche, our country is charged with advancing that goal. Having a largely homogeneous group of inventors diminishes the quality of invention and loses potentially great inventors who are disenfranchised from participating in the patent ecosystem. Instead, the Constitutional intellectual property mandate must be viewed as a social directive and, as a society, if we are to truly “promote the progress of science,” we hold the burden of making it equitably inclusive. Creating a more equitable patent regime will help “equalize health and education standards, promote socio-economic empowerment, and foster universal respect for the intellectual property system.”

This article addresses the current problem of racial disparity in the patent ecosystem and attempts to provide solutions by analyzing many of the ways that bias and discrimination have entered that system. To begin, the article provides data identifying some of the problems present within the current patent system. The next section examines potential causes of racial inequality and explores the four main drivers of bias introduction. It will first discuss the inherent bias in some of the definitions of patent law requirements, before exploring the disparities in access to the supply chain required to enter the patent ecosystem. It will then address the bias that is specifically introduced during the examination process before concluding with how minority inventions and patents can be devalued through biased distribution chains. The penultimate section will introduce some new ideas to ameliorate potential issues with previously proposed solutions. Finally, the last section will briefly review various solutions and how they may interact and build upon each other to create change in racial diversity throughout the patent ecosystem.

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While biases are introduced in the definitions of intellectual property, access to knowledge and the structures for registration and utilization of patents, this article has discussed proposed adjustments at each stage that could have immensely positive effects on creating a more equitable system. Creating a new “personal” fee schedule is among the quickest ways to alleviate cost constraints and broaden and diversify those who can utilize the patent system. More far-reaching suggestions, such as creating new regimes for currently unpatentable subject matter, increasing access to patent-centric and legal fields, and creating an unregistered patent right could have the most impact, but these recommendations require more thought, planning, and ultimately adoption from academic, legal and business sectors. This article aims to further the currently proposed solutions and facilitate continued discussions on the various possibilities. To fulfill the mandate to progress science, and society more generally, we must work to adjust socially beneficial legal regimes that allow all to partake in the fruits of their intellectual labor.

Sophia Cortez Iams is a 2023 Juris Doctor candidate at the University of San Francisco School of Law. She obtained her M.S. in Engineering, Science, Technology Entrepreneurship from the University of Notre Dame in 2010 and her B.S. in Biological Sciences from the University of Notre Dame in 2009.