Rich Ford: This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I’m Rich Ford, with Pam Karlan, and we’re back after taking some time away, so don’t forget to subscribe, or follow this feed on your favorite podcast app, that way you’ll have access to all of our new episodes as soon as they’re available.

Patents and the protection of inventor rights were deemed important enough that when the United States Constitution was ratified in 1788, it included what’s now known as the Intellectual Property Clause. That clause reads that Congress shall have the power to promote the progress of science and the useful arts by securing, for limited times, to authors and inventors the exclusive right with respect to their writings and discoveries.

And one of the most important areas in which this clause is implemented today is in the patent system that protects inventions of a variety of kinds in technology, medical technologies, um, industrial technologies, a variety of types that propel our economy and, um, make life better for everyone. 

Our guest today is our colleague, Lisa Ouellette, a Stanford Law School professor whose research looks at intellectual property and innovation law. And Lisa has been looking at inequality in the patent system, and how that might affect innovation, that incentive that’s the reason for having patent law in the first place. Her paper is entitled Improving Equity in Patent Inventorship, and it was recently published in Science Magazine. Welcome to the show, Lisa.

Lisa Ouellette: Thanks for having me. 

Ford: Can you tell us a little bit about the patent system generally? Why should we care about it? Um, a lot of people have no direct knowledge or experience with this engine of innovation. And yet it affects us all every day, doesn’t it? 

Ouellette: Yeah. So, I mean, interestingly, it’s not even clear whether the patent system is an engine of innovation. Somewhat surprisingly to my students, there isn’t actually rigorous evidence that stronger patents increase overall research investments, much less whether this benefit is large enough to outweigh the patent system’s costs. So, there are a lot of big questions about like what an optimal innovation system would look like.

But as you said, the US has always had a patent system and is unlikely to get rid of it. And given the current system, patents are a measure of innovation, and they definitely have clear benefits for people who are getting them, um, including increasing earnings, and generating reputational and professional benefits that can accumulate over a person’s career.

Pam Karlan: So, what does a patent actually do? 

Ouellette: Yeah, so I, a patent gives an inventor a exclusive right over their invention for the limited time over the patent. So, if you have a patent claim that covers a new pencil, then you have the right to prevent other people from selling that pencil for the patent term, which is 20 years from when the patent is filed.

And the theory here is that by having that exclusive right, uh, you will have ability to charge more for your pencil. You’ll have this limited pencil monopoly that will give you the incentive to come up with this new pencil design in the first place. 

Ford: And so, this applies to a whole range of innovations, right? Like pharmaceuticals, for instance, if I develop a new drug that’s going to cure cancer, I might have a monopoly on, um, that drug and could prevent anyone else from copying that. 

Ouellette: Yes, you can patent all kinds of innovations, anything, as long as it is new, compared to what happened before, including pharmaceuticals, software innovations, AI. The pharmaceutical system, as you say, is one of the areas where the patent system has had the biggest impact because, um, the, it can give a even stronger monopoly with, um, contributing to the current high prices of pharmaceuticals that there’s been a lot of policy debate over. 

Ford: So, your paper focuses on a very specific issue with the patent system that involves inequity. Could you tell us a little bit about what you found? 

Ouellette: Sure. I mean, to start, like, the patent system has huge inequities by race, gender, income, geography. Women are about 13 percent of inventors in the U. S. And at the current rate, it would take over 100 years to reach gender parity in patent inventors. Black Americans are around three times less likely than white Americans to be patent inventors. There’s huge disparities by geography and income. 

Surprisingly, it’s very challenging to actually get good numbers on any of these statistics because the Patent Office doesn’t collect demographic information on inventors. All they collect is the inventor’s name and location. So, when the Patent Office was tasked with studying gender inequality in the patent system, they had to make estimates based on predictive name gender dictionaries, like estimating that if an inventor is named Lisa, then probably that inventor identifies as female. Which of course gets lots of things wrong in individual cases and can’t account for nonbinary gender but is reasonably accurate if you’re looking for an estimate over millions of patents.

And this is a longstanding historical problem, um, including, there’s really interesting work by this legal historian Kara Swanson on racism and sexism in the early U. S. patent system, including how black inventors and women sometimes hid their identities with false patent applicants to avoid the bias of the patent system and the marketplace.

So the inequalities in the patent system are longstanding, and we’re looking at, kind of, one small, uh, piece of this problem. 

Ford: Now, you mentioned that, for instance, um, women are 13 percent of inventors. Now that’s 13 percent of inventors who get patents, right? So, one question is, is the problem that fewer women and people of color are, um, inventing things, or is it that fewer of them are successfully, uh, applying for patents?

Ouellette: Um, so it is both. There are lower rates both of applying for patents in the first place and loss at every stage of the pipeline of innovation. So, in the science and engineering workforce, women and underrepresented minorities are a lower percentage of that workforce than they are of undergraduate science and engineering degrees. 

And they’re even lower as you move to kind of each stage of the hierarchy. Also, a lower percentage of people getting scientific paper authorship. So, the problems of diversity in tech and stem are more longstanding. Um, and I actually experienced this firsthand before I went to law school, I got a PhD in physics, and I was often the only woman in the room and saw my female counterparts dropping out of the PhD program at a much higher rate than our male counterparts. So, seeing this leaky pipeline. 

But the particular problem that we’re focused on in this article is what we call the um, innovator inventor gap that women and underrepresented minorities, even when they are members of scientific research teams and getting authorship on papers, they’re still less likely to end up on the resulting patents.

So, and then there’s evidence of this, that when the same invention ends up being both patented and published in a scientific paper, which is called a patent paper pair, the junior and female scientists who are authors on the paper are less likely to be named as an inventor on the corresponding patents.

Karlan: Is that because they’re junior, or because they’re women, or people of color or what’s the mechanism there? 

Ouellette: Yes, that’s the interesting question. We don’t have the answer. In this paper, we are laying out more hypotheses than we think have been presented and marshalling the existing evidence to try to understand what role these different things could play.

So, I think there are two potential mechanisms there. One is simply bias and who gets credit for the inventions. So, like this concern should be familiar to anyone who studied discrimination, different contexts, like the worry is like, once it comes time to decide who goes on the patents, then there may be unconscious bias against people who are lower on the status hierarchy in various ways, including because they’re women, or underrepresented minorities, or junior scientists. 

Karlan: Yeah, that’s sort of like that famous New Yorker cartoon of all these people sitting around a table, they’re all men except for one woman. And the caption reads something like, that’s a brilliant idea, Miss Jones. Now would a man like to say it. 

Ouellette: Yes, yes, exactly. And I mean, there’s anecdotes of this from, um, you’re probably familiar with, uh, Rosalind Franklin not getting credit for her work on DNA and there’s, uh, many examples throughout history of women not receiving sufficient credit for, um, similar scientific contributions to men. And there’s empirical evidence showing that this is a systematic problem.

But there’s another potential explanation, which I think has gotten less attention and that we’re trying to highlight in this paper, which is that the standards for what it means to be a paper author are not the same as the standards for what it means to be a patent inventor. So, for a paper author, those rules are governed by scientific norms, and usually anyone who’s made any kind of important contribution to the paper can end up as an author. 

But the rules for who gets to be a patent inventor are quite different. Like, patent law has long favored coming up with an idea over doing the work to implement that idea in practice. And that’s reflected in the rules for patent inventorship. So, the patent inventorship standard is that you need to have contributed to the idea, what patent law calls the conception of the invention. And if you didn’t contribute to conception, you can’t legally be listed as an inventor. And that means that work that qualifies for authorship often doesn’t qualify for inventorship.

There’s a prominent case in which scientists from the NIH were held to not be inventors after they use their cell line to determine that a new compound was effective against HIV. Even though they were the lead authors on the corresponding scientific papers. Um, because they weren’t the ones who came up with the idea of testing those particular compounds against HIV.

Ford: Okay, so part of the problem may be that the teams themselves have unconscious bias and therefore don’t give the woman credit. Um, that’s the, you know, Ms. Jones could a man, say, that brilliant idea. Um, so they give the man credit, but part of the problem is the legal system. That even when the team says, yes, Ms. Jones does get credit, um, the legal system says, no, she doesn’t because we don’t think that she’s the one that came up with the idea. 

Karlan: And what’s the consequence of that? That is, if you’re named on the paper, but you’re not on the patent, how does that affect your life going forward as the person who is on one but not the other?

Ouellette: Yeah, it’s a good question, and we don’t have enough evidence about that, but there are studies showing that patents have benefits in terms of raising a person’s lifetime earnings or making them more valuable within a company and more likely to stay there. And also, generating reputational and professional benefits. Like scientists who are inventors on patents, they will list this on their resumes, on their LinkedIn pages. And so, if you aren’t on the patent, then you don’t have those benefits to list and won’t [00:12:00] have the resulting professional benefits, career advancement, other opportunities. It also potentially might just affect your self conception, and if you’re not being listed as a inventor on the patents, then you’re less likely to think of yourself as an inventor. And that could affect your likelihood to invent things going forward. 

Ford: And maybe that leads us to one of the comments that you made in your paper that, um, if women, racial minorities, and people from low-income backgrounds invented at the same rate as high income white men, the overall invention rate would quadruple. Could you tell us a little bit more about that? 

Ouellette: Sure. So that was a result from Raj Chetty’s group that received a lot of attention a few years ago. So, they overcame the lack of demographic information problem by matching the patent office’s data with tax records and some school district records. And they found these really striking descriptive results, like that the innovation rate would quadruple if everyone was inventing at the same rate as high income white men. I think that’s a illustration that this isn’t just a problem of equity. Like disparities in patenting mean that we are likely missing out on a lot of new technologies that we might have if everyone had the same opportunities to innovate.

They framed their paper as the problem of Lost Einsteins, you may have seen there were New York Times and other prominent press pieces on the, these Einstein’s were missing. Although given that Einstein was a white man, I always thought it should be something like lost Curies or lost Kizzy Corbett’s or something like that.

Karlan: So that’s fascinating. And that’s about the quantity of innovation. Um, do you have any hypotheses about whether it would change? The types of innovation as well, that is, it’d be one thing if you know, we just have like four times as many word processing programs or, you know, four times as many automobile, you know, accelerators or whatever the thing that’s being patented is, you know, [00:14:00] four times as many, you know, forms of, annoying soft drinks. Um, but do you think it would change? I mean, is there stuff to suggest that the innovations are in different areas or are of a different kind? 

Ouellette: Yeah, there is. So, there’s some really rigorous empirical evidence showing that all female inventor teams are more likely to focus on issues of women’s health than, um, other teams, and there’s a lot of anecdotal evidence. I mean, here in Silicon Valley, you hear about, uh, health tech companies that are largely staffed by young white male inventors are often focused on problems faced by young white male people in the population. Um, and if you have, uh, more diverse invention teams, then the kinds of problems that they’re going to view as socially important can change as well.

Ford: Lisa, how do you think we should tackle this challenge? You know, on the one hand you suggested earlier that maybe the patent system isn’t really driving innovation in the first place, so that might suggest that the solution would be we just, you know, stop granting as many patents or you don’t focus on that. But, um, you know, another solution might be that we try to increase the number of patents that these underrepresented groups are getting. Do you have a thought about that? 

Ouellette: It’s unclear why, um, women and underrepresented minorities are not succeeding in the patent system to the extent as other groups. And I think it’s really important that the policymakers think about ways to rigorously test this. And the patent office, including under the current director, Kathi Vidal, who’s very interested in increasing equity in the patent system, has been starting to think about this. 

For example, obtaining a patent is not currently a user-friendly process. Like, when you come to the patent office as a first-time inventor, what you will typically get is a confirmation that they received your invention, and then the first thing you’ll get is something called a rejection, or even a final rejection, which does not sound very friendly. Um, so if you’re new to the patent system, you think, well, they don’t want me here, not recognizing that the vast majority of patent applications start with a rejection and this usually begins a process of back and forth where you, um, eventually will end up with a issued patent. 

And one study, uh, suggested about half of the patent gender gap is due to women being more likely to abandon their patent applications after these discouraging replies. So that’s a difference in who is willing to persist after being initially told no. Uh, so the Patent Office has been thinking about ways to address this, uh, including, it now sends applicants a welcome letter rather than just a confirmation and then the rejection. Um, and they recently did their first randomized trial within the patent system of having a new set of patent examiners whose role is to deal with applicants who aren’t represented by an attorney. And they had special training on how to deal with these pro se applicants and answering their questions, being more user friendly, and they found that this experimental examiner unit completely closed the gender gap in the application success rate in the areas in which women were doing the worst and among first time U. S. applicants. So, I mean, that’s a small percentage of inventors, the ones who don’t have an attorney, but I think that’s promising that the office is willing to experiment like that. 

Karlan: Can I ask you a question about that, which is it closed the gender gap. Did it close the gender gap by keeping the kind of white male applicants where they had been or did it both increase their success and also increase, uh, the, uh, success of women or underrepresented minorities. That is, did, was that kind of rising tide that lifted all boats or was it, did it have a real gendered effect? 

Ouellette: Yeah, so, it improved things for everyone, uh, and it just improved things for women more. So that’s, uh, it closed the gender gap. But I think it’s a illustration as in many contexts that things that can make systems more friendly to all kinds of participants in that system, can also reduce some of the inequalities in the system. 

Karlan: Yeah, it’s kind of like universal design in that sense. 

Ouellette: Exactly. 

Ford: Uh, Lisa, your paper doesn’t directly address AI, but AI is of course on everyone’s mind as the new technology that’s going to transform our society. Uh, any thoughts about how your study with inequities in the patent system might be affected by AI or affect AI patents moving forward?

Ouellette: Yeah, so, I mean, as in all areas of legal practice, I think AI is going to have a big impact on the patent system. And, as in other areas, I think it’s unclear what overall impact this will have on equity. So, on the one hand, you can imagine generative AI systems helping to make the patent system more accessible for people who are not able to speak legalese and deal with a very technocratic language of patents. Perhaps having a generative AI system that can help with drafting patents within that language could make the patent system more accessible to a wider variety of inventors. On the other hand, If the best AI patent technologies are only affordable for large private firms, then it could also exacerbate some of the existing disparities where it’s only the wealthiest applicants who have access to these technologies.

Karlan: So, you said something when you were talking about who gets on the papers versus who gets the patent that I wonder if you might speculate a little bit about this with AI. Which is, once generative AI starts coming up with ideas for things that haven’t yet been patented, but would otherwise be patentable, is it, uh, is that stuff patentable if the idea comes from generative AI? 

Ouellette: Yeah. So, the patent office is struggling with this right now. They had a listening session here at Stanford in the spring to hear thoughts from people in this community about whether the AI should be an inventor, how it should be credited, how the patent office should deal with that.

Currently, the rule is that you have to be a human applicant in order to get a patent, and the AI is a tool that’s being used by the applicant. But, like a year ago, I asked chat GPT, like write a non-obvious patent claim without giving any guidance at all. Um, and it wrote a, uh, non-laughable claim about, um, I think it was a wireless powered technology that would have taken some time for a, someone to figure out like why this actually isn’t patentable.

I think this is going to be an issue that the Patent Office will need to grapple with going forward, and that it will exacerbate some of the existing problems with the patent examination system as the Patent Office gets flooded with patent claims that are more easy to generate with these tools. 

Ford: Well, thank you so much, Lisa, for talking to us today about inequities in the patent system.

This is Stanford Legal. If you’re enjoying the show, tell a friend and please leave us a rating or review on your favorite podcast app. It’ll help us improve the show and get the word out that we’re back. I’m Rich Ford for Pam Karlan. See you next time.