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The Complex Effects of Piracy on the Movie Industry

May 9, 2023 Christopher J. SprigmanAdd a Comment

Does piracy of creative goods such as movies, books, or songs reduce paid demand for those goods? This seemingly straightforward question has proven surprisingly difficult to answer in the real world.

Piracy may draw away customers who might otherwise have paid. But it’s also possible that consumers of pirated copies are, by and large, not people who would have paid to consume if they couldn’t get access for free. Piracy may also help spread the word about a good movie, book, or song. This sort of informal advertising might drive up paid consumption, even if some people who would have paid are lost to piracy. It’s also possible that some combination of all these things might happen, with uncertain net results.

In a new empirical paper, titled Avengers Assemble! When Digital Piracy Increases Box Office Demand, Klaus Ackermann, Wendy A. Bradley, and Jack Francis Cameron offer a nuanced and interesting study of the effects of piracy on the movie industry. The effects of piracy, as it turns out, have a lot to do with what kind of movies we’re talking about.

The authors built a novel dataset that identified the existence and the timing of the earliest upload of a high-quality pirated copy for every U.S. movie release. The authors did this with data on the appearance of movie piracy “torrents” between January 2004 and January 2020 from online piracy site The Pirate Bay (TPB). The authors then matched this data with movie release information during the same period from the well-known IMDb database.

Merging these two streams of data allowed the authors to match up release dates and “piracy dates.” They measured changes in box-office revenue for pirated movies in the first 48 days after their releases in theaters, relative to the preceding period following releases before the movies were pirated. They then used a formula to adjust for the general fall-off in movie box-office revenues over time. If piracy was substituting for paid demand, the authors could pick up that effect by comparing (time-adjusted) pre-piracy vs. post-piracy box office revenues across many films.

The authors hypothesized that piracy has different effects on different types of movies. Specifically, they theorized that “spectacle” movies—the kind of movies that people want to see in the movie theater—may be less affected by piracy than “story” movies that people are more content to watch on their computers. In other words, spectacle movies may benefit more from word-of-mouth advertising that piracy may provide while losing fewer customers to demand substitution, compared to story movies.

To aid this assessment, the authors constructed two measures of movie “spectacleness.” One used a movie’s release in 3D or IMAX formats as a proxy for that quality (because “spectacle” movies are the kinds of movies that people want to see in these especially immersive formats). A second categorized movies into genres associated with spectacleness and story-focus by measuring the number of movies in various genres nominated for the “best visual effects” Oscar (associated with spectacleness) as opposed to the “best original screenplay” Oscar (associated with story-focus).

Based on data for more than 400 movies, about half of which have been pirated within the first 48 days of release, the authors concluded that piracy had the mixed effects they predicted. For films for which in-theater viewing adds value (“spectacle” films), there is a 13% increase in average daily box office revenue after the appearance of a high-quality pirated version of the film online. For story-focused films, on the other hand, there is as much as a 30% decline in average daily box-office returns after the appearance of a high-quality pirated version of the film online. This is consistent with the idea that piracy acts as a substitute to films focused on story, where the full value of the film can be consumed at home.

The authors’ findings shouldn’t be too surprising. Think for a moment about the music industry. Recorded music is more vulnerable to piracy than live music because a big part of the appeal of live music is the immediacy and communal experience of the concert. Such experiences cannot be replicated in a pirated recording.

So we might expect that during the post-Napster but pre-Spotify/Apple Music era when online piracy was driving down revenues for recorded music, there would be an industry shift toward more focus on live music. There was indeed a very rapid growth in that period of big live music firms such as Ticketmaster and Live Nation. Moreover, during that period the rise of live music revenue very closely mirrored the decline of recorded music.

In 2000 (just after Napster’s debut), recorded music represented 53% of the global music industry. By 2017 (when paid streaming started to restore lost recorded music revenues), recorded music’s share of total music industry revenues had dropped to 38%, while live music went from 33% to 43% of the industry.

Something analogous is happening in the motion picture industry, although the effect is probably not as pronounced. That is, the industry’s product mix may have shifted toward “spectacle” films because these sorts of film tend to be more resistant to piracy. Indeed, the authors gesture in this direction, stating that their findings suggest because the value of a film is linked to its “spectacleness,” the industry would be wise to adjust its creative output on the margin—i.e., to produce more spectacle films—to blunt piracy’s effect rather than investing in the law enforcement efforts that would be required to reduce piracy by any substantial amount.

Alternatively, movie studios may seek to insulate story films against piracy by, for example, releasing them to streaming channels simultaneously with theatrical release. Or, maybe movie studios could invest directly in upgrading theaters for these story-focused films to enhance the in-theater viewing experience in other ways, such as by making the theater a place for fun and social interaction. (Theaters such as the Alamo Drafthouse are already offering this kind of experience).

If so, then the principal effect of movie piracy may not be to lower the overall demand for movies or the number of movies produced. It may be to shift the kind of movies produced, or, more subtly, to shift the way that movies are presented to the public. Unlike the relatively simple framework in which piracy leads to fewer movies, the real effect of piracy may be more subtle, and the case for investing significant resources (especially public resources) in anti-piracy efforts less clear.

Policy Experimentation to Address Inequality Among Innovators

Apr 4, 2023 Lisa Larrimore OuelletteAdd a Comment

Inequality among innovators is a substantial social problem in terms of both equity and economic growth. For instance, Raj Chetty’s Opportunity Insights group has documented that if women, racial minorities, and low-income Americans invented at the same rate as high-income white men, then the rate of U.S. patenting would quadruple. They also note the glacial progress toward closing these gaps, such as the 118 years it will take to reach gender parity at the current rate.

These inequalities affect not only the rate of innovation, but also what kind of innovations are created—for example, all-female inventor teams are more likely to focus on women’s health. Unfortunately, the evidence base for policy interventions to reduce these innovation gaps remains depressingly shallow. Most policies are tested without a rigorous evaluation strategy or control group, making it difficult to determine whether they had any effect.

A new paper from the U.S. Patent and Trademark Office (USPTO), Closing the Gender Gap in Patenting: Evidence from a Randomized Control Trial at the USPTO, is a remarkable addition to this literature. For the first time ever, the USPTO has tested a policy intervention as a randomized experiment, allowing a credible evaluation of its effectiveness. Changes in patent policy have rarely been tested with any element of randomization and have never been tested previously by the USPTO itself. Even if this experiment had yielded null results, the effort would still have been laudable as a model for how agencies can assess the impact of a new policy and publicly disclose the results. But the experiment also documents that the intervention—a new program to help patent applicants without legal representation—led to a sizeable decrease in the gender patenting gap.

The USPTO’s experiment began in 2014, when it created a new “Pro Se Pilot Examination Unit” to help pro se inventors (those without professional assistance) through the patent examination process. Obtaining a patent is not a user-friendly process, with most patent applications receiving a “rejection” or even a “final rejection” (which is actually more akin to a “revise and resubmit”) before eventually being allowed.

One study suggests that around half of the patent gender gap is due to women being more likely to abandon their patent applications after these discouraging replies rather than persisting in this back-and-forth process with the patent office. To address a concern that pro se inventors may be particularly disadvantaged in this process—for reasons unrelated to the merits of their inventions—patent examiners in the Pro Se Pilot received training on strategies to assist these inventors. For example, examiners would encourage applicants to call them with questions and would proactively help applicants draft better patent claims.

In the same way that promising new medicines are rigorously tested in randomized controlled trials that assign patients to either the new treatment or a control group, the USPTO decided to test this new examination unit by randomly assigning pro se applicants to either the Pro Se Pilot or to the regular examination process. By comparing outcomes across the two groups, they found that the Pro Se Pilot increased the likelihood of receiving a patent for all pro se applicants, and that it had a particularly striking effect for women. The likelihood of receiving a patent increased by 6.1 percentage points for men compared with 16.8 percentage points for women. The gender effect was even larger among first-time U.S. applicants: the likelihood of receiving a patent increased by 5.8 percentage points for men and a remarkable 23.5 percentage points for women. These results provide strong causal evidence of the new program’s value in closing the patent gender gap for pro se applicants.

Of course, this intervention is only one small step toward addressing the innovation gender gap more broadly. Future research should investigate whether similar changes in examiner training could help reduce the patent gender gap for broader groups of applicants. Less than 1% of U.S. patent applicants are pro se, but the additional guidance provided through the Pro Se Pilot might also help a larger group of inventors, such as those at small and micro entities who are currently disadvantaged by lower-quality legal representation.

In addition, the USPTO should study whether the reduced gender gap persists beyond patenting. Receiving a patent is worth little in isolation; financially benefiting from patents depends on other institutions with their own gender biases, such as corporate rent-sharing and venture capital. The Pro Se Pilot increased the likelihood that a pro se applicant would receive a patent, but it is worth examining longer-term outcomes such as assignments of these patents, new patent applications from these inventors, and non-patent outcomes gathered by survey or by linking to other datasets.

But the need for further research should not detract from the monumental nature of this study, which has simultaneously tackled two problems of bipartisan interest: inequality among innovators, and the need for better evidence to improve government effectiveness. In 2018, President Trump signed the SUCCESS Act of 2018, which tasked the USPTO with studying and recommending solutions to the problem of inequality among innovators. And the USPTO’s current Learning Agenda—developed pursuant to the Evidence Act of 2018—commits the agency to develop evidence on how to improve the effectiveness of patent examination in general, and with assessing participation in the patent system by underserved populations. The success of the first randomized controlled trial run by the USPTO on both of these fronts will hopefully inspire the use of rigorous experiments to test other policy interventions, both within and outside the patent context.

Do Sex and Drug Associations Tarnish or Burnish Trademark Reputations?

Feb 23, 2023 Sarah FackrellAdd a Comment

Federal trademark law now protects certain marks against “tarnishment.” If a mark is associated with “bad” things such as drugs or sex, the theory goes, that may harm the seller’s reputation and dilute the mark’s “commercial magnetism.” The theory sounds plausible enough, in theory. But what if that is not how it works in practice?

In Trademark Tarnishmyths, Linford, Sevier, and Willis add to the growing literature that empirically tests this theory of trademark tarnishment. The authors conducted two experiments in which famous marks were associated with sex, drugs, or sacrilege. The authors assert that theirs is “the first test of whether drug-related and sacrilegious uses tarnish appropriated marks, in two separate studies.” (P. 9.)

In the first study, “subjects were shown images of target marks used to sell cannabis products or in off-color, sexual contexts.” (P. 1.) They found that, instead of decreasing the desirability of the target marks, these exposures actually increased or “burnished” the desirability of those marks.

In the second study, “subjects were shown banner ads with cannabis-infused Skittles and satanic-themed Sunday sales of Chick-fil-A sandwiches.” (P. 2.) They found that highly religious respondents “reported Chick-fil-A was less tasty” after being exposed to the sacrilegious imagery. But the same was not true for cannabis; “conservative respondents exposed to the drug-related stimuli reported Skittles were more wholesome compared to the control – another burnishment effect.” (P. 2.)

The authors conclude that “the case for tarnishment might be weak in circumstances where courts have been most willing to presume tarnishment occurs”—i.e., when a famous mark is associated with drugs or sex. (P. 2.)

Insofar as these studies cast doubt on the conventional theory on tarnishment, this has some important implications for trademark law and policy.

First, as the authors note, to the extent their results are generalizable, “courts should require some evidence of likely tarnishing effect before granting relief on a claim of dilution via tarnishment” instead of just assuming such an effect. (P. 9.)

Second, the authors suggest that “anti-tarnishment protection might well be due for congressional reevaluation or vulnerable to constitutional challenge on First Amendment grounds.” (P. 9.) Claims of trademark dilution, and tarnishment in particular, have always been in considerable tension with the First Amendment, as other scholars have noted. If the types of uses that courts have, to date, treated as presumptively tarnishing don’t actually tarnish—and may even burnish—the mark’s reputation, it’s hard to justify this (relatively recent) federal cause of action.

In light of expanding legalization of marijuana at the state level, I wonder whether cannabis would be viewed as “bad” by enough people to make it the best testing reference. After all, older cases dealt with things like cocaine. But considering the public reactions to the October 6 “Statement from President Biden on Marijuana Reform,” it appears that at least some politicians continue to think—or at least, think that their voters think—cannabis is, in fact, a seriously bad drug. It would be interesting to see what would happen if these types of experiments were run using other drugs, such as methamphetamine.

Overall, this is a very valuable addition to the trademark dilution literature, and I highly recommend it.

How Do Patents Influence Cumulative Innovation?

Jan 24, 2023 Laura Pedraza-FariñaAdd a Comment

Ask any patent law student why we have a patent system, and they are likely to answer that patent law addresses a fundamental market failure: the free-riding by non-inventors on the inventions of others. A patent holder’s right to exclude others from making and using her patented invention addresses free-riding directly, restoring ex ante incentives to invest in innovation. But in solving the free-riding problem, patents create a second-order problem—one that is inextricably linked to the dynamics of innovation itself. Because all knowledge, and therefore all innovation, is cumulative, patents make innovations that build upon a patented feature more costly for parties other than the inventor, who must license an invention if they are to build upon it.

The problem of “follow-on” innovation has long preoccupied both economists and legal scholars. In their excellent paper, Measuring Follow-On Innovation, Janet Freilich and Sepehr Shahshahani contribute to this debate by bringing together both a deep understanding of patent law doctrine and precise econometrics research. In so doing, they make important contributions not only to the empirical literature, but also to our current theoretical thinking about the impact of patents on follow-on innovation.

Freilich and Shahshahani’s key empirical contribution is a refinement of the measure to capture the universe of follow-on innovations that are plausibly influenced by a patent. Two dimensions of patent law doctrine impact follow-on innovation. The first, patent breadth, determines how wide a net a specific patent casts—the more expansive the metes and bounds of a patent entitlement, the more follow-on innovations it will ensnare. The second, the collection of patent infringement doctrines, determines which types of activities in fact encroach upon the patent right. Their paper largely cabins the issue of patent breadth by focusing exclusively on measures of patent infringement.

Their article’s core claim is that existing empirical analyses of the impact of patents on follow-on innovation include activities that are non-infringing—and therefore, not the type of “patent related” follow-on innovation that those studies attempt to measure. The effect of this incorrect inclusion is large; in fact, Freilich and Shahshahani conclude that “little follow-on innovation is directly affected by the patent, with implications for theorizing the tradeoff between initial and follow-on innovation.” (P. 4.)

Freilich and Shahshahani focus largely on replicating and refining results in one important paper by Bhaven Sampat and Heidi Williams. In that study, Sampat and Williams measure follow-on innovation on patented and unpatented genes, using creative strategies to eliminate selection biases and concerns about claim scope.¹ Freilich and Shahshahani’s refinement consists of eliminating non-infringing activities from the pool of follow-on innovations. Replicating Sampat and Williams’ methodology, they rely on articles published in a scientific journal that discuss research on the patented genes as their measure of follow-on innovation. Specifically, their refinement removes from the pool of follow-on innovations those scientific publications that fall under the following well-defined non-infringement categories: (1) extraterritorial activities; (2) activities by persons affiliated with the state government; (3) activities by persons affiliated with the federal government; (4) activities generating information for submission to the Food and Drug Administration (FDA) under the 35 U.S.C. § 271(e)(1) safe harbor provision; (5) and using or importing results generated from a patented technique.

Sampat and Williams found a small but statistically significant effect of gene patents on follow-on innovation. In light of other studies on gene patents,² one might have expected that this paper’s correction would have uncovered a larger impact of gene patents on follow-on innovation. But the opposite was in fact the case. While Sampat and Williams found that gene patents had a small negative effect on follow-on innovation, Freilich and Shahshahani’s refinement found an even smaller effect. In short, with the new correction, patenting genes has an almost negligible impact on follow-on innovation.

Their refinement is important in no small part because it requires deep knowledge of patent infringement doctrines, including understanding which infringement doctrines produce predictable results ex ante that are unlikely to lead to litigation. This last point is critical: because the universe of follow-on innovations should include any invention for which a license would reasonably be required, their measure should only exclude those innovations for which we can be certain that a license would not have been sought ex ante. The importance of identifying clearly non-infringing activities also puts pressure on their empirical methodology. In this regard, one particular infringement area—the safe-harbor provision under 271(e)(1)—is worth discussing further.

The experimental use exception proves to be an important filter in their corrected measurement, eliminating 388 publications from the original pool of 2,771 follow-on publications. The 271(e)(1) safe harbor provision is meant to exempt from infringement activities “reasonably related to the development and submission of information”³ to the FDA. Courts have interpreted this provision broadly to include many drug-development activities, including early-stage research. Recent caselaw, as Freilich and Shahshahani point out, excludes two key types of activities from this safe harbor: basic scientific research and patented technology that is not itself subject to federally regulated approval (also known as the research tools exclusion).

To identify publications that fall under the 271(e)(1) exception, the authors use a proxy: whether the publication discussed a potential therapeutic application. This proxy is cleverly designed but both potentially under- and over-inclusive, as the authors recognize. Some exempt research projects may not explicitly address therapeutic applications. On the other hand, it is plausible that scientific publications engaging only in basic scientific research mention therapeutic applications for the purpose of seeming more attractive to funders or publishing venues. The research tool exclusion could also lead to over-inclusivity concerns. Because correctly identifying research that is exempt under 271(e)(1) is likely to be crucial in future studies of follow-on innovation in the biomedical sciences, further refining this measure would be a fruitful avenue of future research.

Freilich and Shahshahani next turn to exploring how their refinement might help reconcile other studies on follow-on innovation—many of which found larger effects of patents on downstream innovation. They begin with an explanation rooted in sociological factors. University researchers, who are likely overrepresented in the sample of follow-on innovations measured by published scientific papers, may be largely unaffected by details of patent law doctrine. This effect can be explained by a robust underlying social norm that fosters the free sharing of information and materials, and a disregard for patent entitlements. The situation might be quite different for communities embedded in biotech start-ups and established pharma companies, where uncertainties about the content of 271(e) and doctrines designed to police claim breadth may lead to choices of research projects away from those that require the use of patented materials.

Their explanation reveals another interesting mechanism worth exploring in future studies on follow-on innovation: the impact of patents is likely to be mediated by communities’ social norms. This makes it crucial to understand those social norms and the likely distinct mechanisms by which communities of university researchers, biotechnology startups, and established pharmaceutical companies (among others) decide which follow-on research projects to pursue and which ones to abandon.

Finally, Freilich and Shahshahani consider how their measure may inform existing theories of innovation. As they recognize, “the proper measure of follow-on innovation depends on the hypothesized mechanism through which a patent might affect downstream innovation.” (P. 29.) Two quite different theoretical perspectives on the role of patents in follow-on innovation have emerged from the literature. The first one conceptualizes patents as increasing incentives for patent holders to invest in follow-on innovation. Under this theory, patents do not diminish follow-on innovation; rather, patents tend to concentrate follow-on research in the hands of fewer patent-holding inventors. In contrast, the second theory emphasizes the access costs that patents impose on follow-on innovators other than the patent holder.

Freilich and Shahshahani’s combination of detailed legal analysis with econometric research opens the door for testing a number of additional questions about the mechanisms of follow-on innovation. For example, one interesting question that emerges from these two theories is whether innovation by multiple parties is likely to be qualitatively different from concentrated innovation by a few patent-holding pioneers. Here, it would be interesting to further parse the authors’ refinement to test whether patents influence the kinds of follow-on innovation that take place. More specifically, do patents change the balance between incremental and breakthrough innovation? Network theories of innovation suggest that breakthrough innovation benefits from knowledge recombination across firm boundaries. By increasing access costs outside the firm, patenting may lead to more incremental and less breakthrough follow-on innovation.

A single paper cannot settle the debate between these two theories of follow-on innovation. But by emphasizing the importance of infringement doctrines in measuring follow-on innovation, and by showing how this measure modifies the experimental results of several prior articles, the authors move us towards a more precise answer, an answer that is likely to vary by industry and to impact basic and applied research in different ways.

Blockchains as Technosocial Systems

Dec 12, 2022 David FagundesAdd a Comment

In popular culture, blockchains (to the extent they are understood at all) are associated with cryptocurrency, and following the crypto crash of 2022, increasingly dismissed as part of a classic asset bubble. But legal scholars are more sanguine. They tout the potential of blockchain, or, more prosaically, “distributed ledgers,” to transform private law, from contracts to securities to property. Blockchains are hoaxes or panaceas depending on which source you consult.

James Grimmelmann and A. Jason Windawi’s sparkling essay, Blockchains as Infrastructure and Semicommons, charts a path between these two extremes. It does so by calling attention not to what blockchains can do for law, but rather by focusing on the novel question of what legal theory can tell us about how blockchains work. The essay leverages two influential notions from property—infrastructure and the semicommons—to deliver insights about blockchains as well as an object lesson in the value of looking at distributed ledgers through the lens of legal theory.

The co-authors first apply Brett Frischmann’s work to show how we can understand blockchains as infrastructure: blockchains (that is, the ledgers themselves, separate from the hardware that enables them or the assets they chronicle) are nonrival inputs that may be used in a variety of goods and services. This in turn highlights that to maximize the social value of blockchains, it is not enough to treat them as purely private goods, since this will fail to maximize the value they could otherwise generate in the form of positive spillovers. Hence, the essay points out, (public) blockchains operate (and should operate) as commons property in two senses: they can be used and read by anyone; and they are managed collectively through numerous maintainers rather than a single centralized owner.

The essay then analyzes blockchains through a second property theory: Henry Smith’s notion of semicommons. Semicommons are resources that are held publicly with respect to some substantial uses and held in common with respect to others, where the public and common uses interact with one another. So, too, are blockchains. Some of their features—hardware, network connection, and the significant work necessary to operate them—are private. Others—most notably, the ledger itself—are common.

This semicommons nature of blockchains explains two key features of why blockchains work. First, the incentives of those who use their private resources to mine are determined only by their computational resources, which preclude corruption and collusion. Second, the public/private interface incentivizes users to agree on a shared governance standard (e.g., the convention that the state of the ledger is defined by the longest chain). Participants cannot go rogue and ignore the majority’s rule without forfeiting their assets.

At this point, one might think that the co-authors are, like most others who have written about law and blockchains, unalloyed enthusiasts of distributed ledgers. As they observe, “The key technical features of a blockchain…fit together like the parts of a finely engineered watch.” (P. 19.) The third and final part of the essay complicates this story. The authors detail six ways, illuminated by infrastructure and semicommons theory, in which blockchain governance can break down. For example, they observe that the technology that animates blockchains—the protocols that describe their operation and the software that implements it—is conceived and written by humans. It is in this sense a pure public good, since protocols and software are information that is typically left open-source. But this raises the risk that, as with all public goods, individuals will lack sufficient incentive to supply it. Hence, blockchains typically include private incentives for their creation, which in turn create their own risks of self-dealing that, again in turn, necessitate governance mechanisms to constrain these risks.

This and the other problems highlighted in the essay’s final part sound a common theme: that while blockchains appear to be self-governing, that appearance is false and obscures the extent to which they—like all institutions—are created by humans, depend on human intervention, and may suffer from the frailties of their human creators and managers.

At the core of how many observers (mis)understand how blockchains work is the assumption that they are mere technologies, no more than protocols and technologies that, once created, operate without any need for intervention. As Grimmelmann and Windawi eloquently put it, “Blockchains are technosocial systems, not just technologies.” (P. 30.) This insight exposes the inevitable presence of human actors in implementing and governing blockchains, and frames the promise for legal scholars of considering blockchains as institutions rather than just technical processes.

Grimmelmann and Windawi’s article is a striking departure from the current run of scholarship about law and blockchains. Nearly all writing in this vein follows the same pattern. It briefly describes how distributed ledgers work and then shows their promise for a particular area of private law. What the co-authors illuminate is not that this field-specific approach is flawed—on the contrary, in many instances is has produced valuable insights about how blockchains may transform law—but that it is incomplete. But the field-specific approach does not delve into the operation of blockchains themselves; it rather describes and accepts their operation uncritically.

The essay, by contrast, examines blockchain not as a means to some legal end, but as an institution in itself as worthy of investigation as any of the other institutions that legal scholars scrutinize. And the richness of the authors’ deployment of property theory as the lens they use to analyze distributed ledgers is not only engrossing and insightful on its own terms, but demonstrates the potential of this largely untapped modality of legal scholarship about blockchains.

Another upside of the authors’ approach is that it counters the oversimplified dichotomy that often prevails with respect to treatments of blockchains. Public discourse about distributed ledgers tends to polarize between dismissive critics and true believers. Most of the law review literature falls into the latter category, with scholars touting the transformative potential of blockchains for particular subsets of private law. By investigating the operation of blockchains themselves, the co-authors are able to offer an informed, measured take. They reject the notion that distributed ledgers are mere hype while also stating realistic reservations about the governance challenges these systems face.

Centering Black Women in Patent History

Nov 15, 2022 Jessica SilbeyAdd a Comment

Professor Kara Swanson’s latest article is a remarkable example of legal historical scholarship that excavates stories from the past to illuminate the present. It is chock full of archival evidence and historical analysis that explains gaps and silences in the United States patent registry as evidence of marginalized inventors–particularly Black women–who should be named inventors but are not.

The article is arresting reading for anyone interested in antebellum history, intellectual property, and the intersection of racism and sexism in law. Mostly, I am grateful to Professor Swanson for doing the obviously very hard work of digging through archives, reading microfiche, and scouring other primary and secondary sources for what she calls the “whispers” of Black women inventors of our past whose stories need to be told to change the narrative of U.S. inventorship.

The main focus of Professor Swanson’s archival research is discovering the “true inventors” of certain patented inventions. Doctrinally, patents are only supposed to be issued to the “true inventor”–the person who conceived and reduced to practice the invention. Unlike in copyright law, there is no “work for hire” doctrine that constructively names the hiring entity or the supervisor as the “author,” or in this case the “inventor.” Patents issue in the name of the inventor and must be assigned afterwards to an employer or business entity or partner. Patents with incorrect inventorship–or false inventorship–are invalid.

Professor Swanson explains that the “true inventor” doctrine has been a rule honored in the breach, especially in the early years of the patent system. Many patents were filed in the name of businessmen who were not inventors and who were permitted by the true inventor to file the patent in another name in exchange for money or later benefits. That is, a true inventor would let another person–a more “believable” person–file the patent in their own name (becoming as Swanson calls them a “false inventor”). This would avoid the later hassle of an assignment and the possible trouble of being second-guessed in the patent office if you didn’t “look” like an inventor (because you were Black or female, for example).

Swanson characterizes this behavior of true inventors with marginalized identities as “situational passing,” in the vein of a marginalized identity passing as a dominant one–Black as white, or gay as straight–in order to experience benefits that should otherwise be rightly theirs, like equal treatment or fair pay. Swanson’s claim is that “situational passing” in the context of patent inventorship happened with surprising frequency and certainly much more often than the current record suggests, which is hardly ever, because “passing is intended to leave no trace” as she eloquently writes. (P. 54.)⁴

One true inventor whom Swanson surmises made such a strategic choice was Ellen Eglin, a Black woman who worked as a laundress, who “sometime during or before 1888,…reportedly sold the rights to her improved clothes-wringer to ‘an agent’ for $18.” (P. 2.) Eglin explained: “You know I am black and if it was known that a [Black] woman patented the invention, white ladies would not buy the wringer”.⁵

Elgin’s few words are “one whisper that tells a story of a Black woman who found a way to contribute to U.S. invention and participate in the patent system.” (Pp. 6-7.) Swanson’s article brings to life the whispers of dozens more, “upend[ing] our understanding of the patent archive itself.” (P. 9.)

Swanson contrasts Eglin’s story with those of Black male inventors and white female inventors, who also used race and gender passing to achieve personal and professional goals and avoid discrimination on the basis of their race and sex. For example, Swanson describes Black men who filed patents but reasonably kept their race hidden by keeping a physical distance from the patent office and relying on the presumption that all inventors were white men. One such man, Thomas Jennings, was known to be one of the first Black U.S. patent inventors (his patent dated 1821) only because of his obituary more than thirty years later in 1859. (P. 39.) As Swanson explains, it took an obituary to “giv[e] voice to a silence in the patent record.” (Id.)

Women inventors had the added problem of couverture, that is, a legal rule that denied them the right to own property, and thus have a patent in their name. For married women, one solution was including their husbands as co-inventors, even when this was not really true. This diluted their contribution while not entirely erasing their role in the creative feat. For example, Florence Layman, nee Parpart, married her financial backer Hiram Layman who was named on patents she filed both before marriage and after. (P. 50.)

Women also faced the problem of “notoriety” which Swanson describes was “incompatible with femininity…[and] womanly modesty.” (P. 52.) To counteract this, women sometimes tried to obfuscate their role or erase themselves from the patent records by omitting their names in favor of their husbands or other business agents. Swanson scoured the patent archive for traces of married couples or for husbands alone whose patents were for household inventions (dusters and other cleaning tools or sewing machines) where wives alone more likely conceived and reduced to practice the invention.

By digging into the archives this way, and by better understanding the life details of dozens of marginalized inventors, some who were Black and some who were female, Swanson schematizes the strategic circumstances of intersectional identities, here Black women like Ellen Elgin. This helps explain how and why Black women like Elgin acted as they did. Swanson posits the existence of many, many more Black women inventors like her.

What does all this history tell us about today? First, it should make us skeptical of the patent archive and its conventional narrative of who is and who is not an inventor. Swanson’s historical analysis demonstrates the very strong likelihood of systematic underrepresentation in the patent archive of Black people and women who were true inventors and overrepresentation of white men inventors who were not. Related, “each inventor who passed as a white man strengthened the plausibility of the false but widespread belief that marginalized peoples were incapable of invention.” (P. 54.)

Importantly, the absences in the patent archive do not indicate a lack of inventiveness by those not represented there, but, to the contrary, when combined with archives elsewhere strongly suggest profoundly inventive behavior of marginalized people who in the face of “bias, inequality and painful self-denial” demonstrated “agency, accomplishment, and pride.” (P. 68.) What Swanson calls “false truths” of inventorship have “consequences…because of the authority of patent records.” (P. 69.)

The story of who is or who is not an inventor influences who will become an inventor or who considers inventorship a possible or desirable status. The importance of this legal history for today is to promote widespread and inclusive innovation because false truths of white male inventorship “discourage marginalized people from invention [which] is a national loss, harming ‘America’s long-standing economic prosperity and global leadership in innovation’ by failing to include all who can contribute to technological creation. That loss is symbolic as well as actual.” (P. 71.)

After reading Swanson’s article, no one can read the patent archive the same way again.