Abstract
This Article makes the empirical and legal case for redefining the concept of patent “progress” to include the promotion of a diversity of innovators and inventors, and not just innovation. Based on a survey of the empirical literature, it details four plausible mechanisms by which diverse innovators improve innovation: novelty, non-obviousness, (overcoming) conflict, and numerosity. It introduces the concept of the “innovator-inventor gap”—the lower rate at which underrepresented technical workers become inventors—and documents how across innovative workplaces, women are patenting at a fraction of the rate of their male counterparts, in part due to barriers placed by the law and mechanics of inventorship. This Article makes several recommendations for advancing “progress” redefined: (1) reconsider inventorship law and policy; (2) institutionalize and strengthen the Patent Office’s ability to promote a diversity of innovators and inventors, and not just invention; (3) launch a public-private “innovator diversity pilots clearinghouse” to support the rigorous evaluation and refinement of relevant policies and practices; and (4) a periodic, innovator- inventor survey for informing the design of policies and practices for making progress.
About the Author
Professor of Law, Berkeley Law School and Co-Director, Berkeley Center for Law and Technology; Marian Croak Distinguished Scholar, United States Patent and Trademark Office (2022-present), 2021–2022 Senior Counselor to the Department of Commerce, 2020–2021 member of the Biden- Harris transition team with primary responsibility for the USPTO, 2013–2015 Senior White House Advisor, Innovation and Intellectual Property. I thank David Cruz, Doug Lichtman, Jillian Grennan, Margo Bagley, Lisa Ouellette, Michael Risch, Eric Goldman, Brad Joondeph, Brian Love, Arti Rai, Jeanne Fromer, David Schwartz, Mark Lemley, Erwin Chemerinsky, and audiences at the MOSAIC conference, USC School of Law, Santa Clara School of Law, University of Colorado School of Law, and the IP Scholars, Works in Progress in Intellectual Property, the tri-state Works in Progress conferences for comments on earlier drafts; Lukas Pinkston, Henry Johnson, and Caressa Tsai for excellent research assistance; the talented and hard-working student editors of the UCLA Law Review for their skillful oversight; and Dirk Calcoen, as always, for his support. This article was the subject of a conference on “Innovator Diversity Pilots” held on November 18, 2022 at Santa Clara University Law School co-organized with the United States Patent and Trademark Office and Emory Law School (https://law.scu.edu/high-tech-law-institute/innovator-diversity-pilots- conference-schedule) and the 2024 Nelson Lecture at Berkeley Law, and spawned the creation of the Diversity Pilots Initiative which uses rigorous research to advance inclusive innovation: diversitypilots.org. The views and mistakes in this article are mine.
