Abstract
Excerpted From: Jordana R. Goodman and Khamal Patterson, Access to Justice for Black Inventors, 77 Vanderbilt Law Review 109 (January, 2024) (240 Footnotes) (Full Document)
To some extent, every invention stems from a person's collective set of experiences. This includes their exposure to certain subject matter, discussions with mentors and peers, home location, age, wealth, and a host of other factors. An inventor can leverage their cultural capital--their knowledge, skills, and education gained from this set of experiences--to create something new and to enable them to achieve higher societal status. Novel ideas and innovation stemming from this cultural capital “have become the principal wellsprings of economic growth and competitive business advantage.”
Some choose to protect their intellectual property by patenting their inventions. Patentable technologies are novel and nonobvious over prior, publicly available inventions, as judged by a “person having ordinary skill in the art” (“PHOSITA”). The United States Patent and Trademark Office (“USPTO”) should grant a patent application if the claimed invention is new and written in a way that enables any person skilled in the art to make and use the invention with the full, clear, concise, and exact terms in the specification.
The process to obtain a patent for an invention is not equitable. and Hispanic patentees “are woefully underrepresented in America,” as are female patentees. Though many--including the USPTO-- are trying to increase equitable representation of patentees, there is still a significant race and gender imbalance for credited inventors in the United States. Herein, we will show how disparities in representation and cultural capital among examiners and patent practitioners-- two gatekeepers of the patent system--affect access to the patent system for underrepresented inventors.
The patent system has standards and practices to theoretically increase objectivity in the patent prosecution and litigation processes. An inventor arises from a group of individuals skilled in the art and creates a new invention from knowledge of that art. A patent practitioner, preferably one knowledgeable in this art, may assist the inventor in writing and arguing the patent application. An examiner, also knowledgeable in the general art of the invention, evaluates the application using the same standards taught to every examiner at the USPTO, including novelty, obviousness, enablement, and written description, among others. Although the processes of intake, writing, and evaluating patents should be unbiased, this procedure is implemented by humans, and thus, it is subject to bias.
Practically speaking, inventors come from significantly different social, cultural, and economic communities, as do patent examiners and practitioners. In cases where an inventor seeks a patent for an invention that is unique to their own community and the cultural knowledge necessary to understand this origin and use is not widely dispersed among patent practitioners and examiners, the inventor may be disadvantaged in the patent process. These gaps in cultural knowledge affect the patent practitioner's ability to effectively write and argue the patent application and affect an examiner's ability to evaluate the patentability of the invention and the proper descriptive depth of the patent application. These are the biases we will explore herein.
These biases pose additional obstacles to those already disadvantaged in inventive spaces, especially when pursuing patent protection for their inventions built for those in a nonmajority culture. Not only does an inventor need knowledge and money to access the patent system, but they also must explain their invention based on some aspect of their cultural capital to the patent practitioner and examiner, who likely do not have overlapping cultural capital. We must examine this extra barrier disparately affecting underrepresented inventors.
Barriers of the default majority culture among practitioners and examiners likely affect inventors of many minority groups. The term “minority group” in sociology refers to a category of people who do not belong to a dominant (often majority) social group based on observable characteristics or practices, such as ethnicity, race, religion, sexual orientation, or disability. When pursuing a patent, an inventor must effectively communicate their invention to at least one attorney or examiner--likely in the majority group--regardless of whether (1) the inventor belongs to the majority group, (2) the invention would be used by the majority group, or (3) the majority group would recognize valuable distinctions of the invention over current technology.
Certain differences in majority-group and minority-group culture, including communication practices and cultural capital held by individuals in each group, are not consistently acknowledged openly during the intake, writing, or argument phases of patent prosecution. Patent practitioners will often acknowledge if they are asked to write a patent application outside of their trained subject matter--like if a patent practitioner trained as a chemist is asked to write a software patent. However, this discussion is likely absent or lacking when the majority-group/minority-group divide is based in cultural education, such as differences in hair-care needs, rather than standardized academic education.
Though these gaps affect a myriad of people inventing from minority-group-derived cultural capital, this Article presents a case study on Black inventors in the hair-care space. Here, we show difficulties in communication between the USPTO and inventors developing hair-care products for themselves, their families, and their friends. The cultural capital necessary for Black hair-care inventions--including knowledge of Black hair texture and style, perceived monetary value of the Black hair-care industry, and existing product expertise--rarely overlaps with the practitioner writing the patent application or the examiner reviewing the application. This lack of overlap--and failed communication between those who do not overlap--can result in a hermeneutical injustice, where the knower (inventor) attempts to share their knowledge, but due to prejudicial flaws in a system, their communication does not get the knower to a place of justice. In this case, that place of justice is patent protection equal to those pursuing patents for inventions developed for and by members of the cultural majority. Patent practitioners and examiners do not receive the necessary training to bridge these cultural and communication gaps. As a result, clients in underrepresented communities are often underserved.
This Article serves as a mechanism to hold the legal intellectual property community responsible for its impact on clients who use minority-group-based cultural capital to invent. Part I provides a brief overview of the patent prosecution process and how certain biases may influence this process. Part II presents a case study of two successful inventions in the Black hair-care space: the NuDred hair sponge and the Naturalicious Clay Treatment. This shows how cultural knowledge gaps between inventors, examiners, and practitioners can disparately affect those whose inventions derive from minority-group cultural capital. Part III provides solutions to improve cross-cultural communication and shared cultural capital among clients, practitioners, and USPTO examiners. These improvements will increase equity among inventors of all backgrounds, comporting with the current ethical practices for which the legal community recognizes and strives.
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We can no longer relegate explanations for the underrepresentation of Black inventors solely to factors outside the legal profession. Attorneys have an ethical obligation to maintain the integrity of their profession and, as such, have a responsibility to recognize how their actions and the legal system they operate within unjustly and unethically affect their clients.
Through the stories of Gwen Jimmere, Bruce Boyd, and Brigitte Gopou, we highlighted barriers to equitable patent accessibility for inventors in the Black hair-care space. Lack of knowledge of the patent system, inequitable access to pro bono opportunities, and attorney-client communication gaps all contribute to inventors receiving less patent protection than they deserve.
In both cases, the inventors experienced a hermeneutical injustice when they attempted to share their knowledge but faced prejudicial flaws in the system. The responsibility to fix the systemic issues plaguing underrepresented inventors rests primarily on the legal community, which has the tools and resources necessary to beneficently pursue patent inventorship equity. Through patent system amendments, MRPC revisions, and law school education reform, practitioners can begin to pursue a more culturally aware, competent, and humble practice. Such an approach will increase inventor diversity and inclusion, require practitioners to challenge and explore how their biases affect their practices, and reduce the epistemic injustice of underrepresenting, undercrediting, and undervaluing Black inventors.
Jordana Goodman is an assistant professor at Chicago-Kent College of Law and an Innovator in Residence at MIT. You can reach her at
Khamal Patterson is a cultural property attorney and researcher in Maryland at University of Maryland, College Park. You can reach him at
