ABSTRACT
Invisible injustices permeate the entire United States legal system. Intellectual property law, though often set apart from traditional equity conversations, is constructed and enforced in ways that perpetuate inequity. In patent law, inequities manifest in disparate subject matter classification processes, unequal written description and enablement evaluations, and inequitable prior art searches and application processes, especially for inventions that rely on cultural capital not shared by those in power.
Though the patent prosecution process may be perceived as culturally blind, it is constructed from an almost exclusively majoritarian viewpoint. As a result, inventors leveraging marginalized cultural capital to invent may be held to a different standard than those leveraging majority cultural capital. Structural and procedural aspects of the US patent prosecution system can deny equity to non-white, non-Christian, and non-native-born US inventors who leverage their lived experiences to invent.
This article makes three contributions to the growing literature in systemic legal inequities. First, it highlights the inequities inventors from marginalized backgrounds can face in the patent prosecution process for inventions related to their culture. Second, it draws attention to the greater inequitable messaging of the patent system which necessarily derives from these inequitable structural and procedural dynamics. Third, it proposes structural solutions at the USPTO to remedy these concerns.
Goodman, Jordana, Patently Inequitable (February 1, 2024).
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