To answer that question, Juelsgaard Intellectual Property and Innovation Clinic Supervising Attorney Nina Srejovic took a look at the past. Her chapter, “Patents and the Gendered View of Computer Programming as Drudgery or Innovation,” in the new book, Feminist Cyberlaw, traces the parallel histories of computer programming as a profession and computer programs as patentable innovation. Srejovic found that in the early days of computer programming, when women were doing the work, programming was viewed as drudgery, merely the use of a machine, not the innovation or creation of technology that the patent system is designed to reward. As computer programming was professionalized and masculinized in the late 1960s and 1970s, that assessment was reversed. During that time, academics and those in industry transformed programmers into software engineers and computer programs into technology. Participants in the patent system also successfully argued that computer programming should cross the threshold into the realm of invention. Unfortunately, when that happened, women were left standing at the door. 

Srejovic recently participated with other contributors on a panel celebrating the release of the new book at the Engelberg Center on Innovation Law & Policy at NY School of Law. In response to a question about who she would most like to read her chapter, she suggested that patent examiners would benefit from considering her research. She pointed out that most of the proposed solutions to the perceived innovation gender gap, including the current National Strategy for Inclusive Innovation, “are all about women doing more,” whether it’s learning more, teaching more, or working more. But “the history of computer programming and patents shows that there may be other levers we can push [to increase diversity in innovation], things like educating patent examiners on different types of innovation, different ways of being an inventor.” In addition, given possible biases in the patent system, it’s important to “measure innovation more inclusively” rather than using the tempting shortcut of patent counts. 

Listen to a podcast of the complete panel discussion moderated by co-editor Amanda Levendowski and featuring Esha Bhandari, Cynthia H. Conti-Cook, Gabrielle Rejouis, Anjali Vats and Nina Srejovic here.  

Read Feminist Cyberlaw, a collection of essays edited by Meg Leta Jones and Amanda Levendowski that explore how gender, race, sexuality, disability, and class affect cyberspace and the laws that govern it, as a free, open access University of California Press volume here.