by Dennis Crouch
The United States Constitution was ratified in 1789. The following year, Congress passed the first patent act that was then signed-into law by President George Washington.
When the Patent Act of 1790 refers to inventors, it lists gender inclusive forms of “he, she, or they:”
[The inventor(s) must] set forth, that he, she, or they, hath or have invented or discovered any useful art, manufacture, engine, machine, or device, or any improvement therein…
Patent Act of 1790. Three years later, Congress substantially rewrote the statute and, at that time changed the pronouns. The new law eliminated the female pronoun “she.”
[The inventor(s)] shall allege that he or they have invented any new and useful art, machine, manufacture or composition of matter, or any new and useful improvement on any art, machine, manufacture or composition of matter …
Patent Act of 1793. See, Kara W. Swanson, Making Patents: Patent Administration, 1790-1860, 71 Case W. Res. L. Rev. 777, 818 n84 (2020) (noting the change). Thus far, I have not been able to identify any explanation or justification for this particular change in the gender language. Perhaps the answer here was simply reestablishment of a patriarchy after some higher-minded ideals during the revolutionary era. Chief Justice Burger explained in Diamond v. Chakrabarty that Thomas Jefferson authored the 1793 Act with the intent that “ingenuity should receive a liberal encouragement.” 447 U.S. 303, 308 (1980) (quoting 5 Writings of Thomas Jefferson 75–76 (Washington ed. 1871)), but the Chief Justice did not content with the narrowing of pronouns (or the newly introduced citizenry limit). [*** Note: Later historians have concluded that Jefferson was not the author. See, Edward C. Walterscheid, To Promote the Progress of Useful Arts: American Patent Law and Administration – 1787-1836, 79 J. Pat. & Trademark Off. Soc’y 61 (1997) ***]. In any event, this implicit exclusion of women was common for the era (as was explicit exclusion). Still, unlike in many other areas of American life at the time, the revised statute was not interpreted to expressly exclude women from patenting. That said, patenting by women was at an extremely low level. Women inventors are credited with only 72 patents during the first 70 years of the U.S. patent system. Although the records are unclear, I have not seen any indication that any of the patents issued 1790-1793 were awarded to women inventors.
The patent laws were rearranged and recodified in the 1952 Patent Act. At that point Congress used a more generalized pronoun “whoever” for the new Section 101: “Whoever invents or discovers…” But, a number of purely male references remained in the statute. Section 115 required the inventor to make an oath that “he believes himself to be the original and first inventor;” Section 102(f) prohibited a person from obtaining a patent if “he did not himself invent the subject matter sought to be patented.” These two provisions were amended and removed respectively as part of the America Invents Act of 2011. Section 115 now identifies inventors as either male or female–requiring an inventor’s oath stating that “individual believes himself or herself to be the original inventor.” Still, other provisions in the law were not changed during this makeover and remain male gendered. See 35 USC 251 (“patentee claiming more or less than he had a right”); 289; 290; 33 (referring to the patent practitioner); and 116. In addition, all references to the USPTO Director continue to refer to the director as male.
For its part, the USPTO has not historically asked for the gender of its applicant. Still, there is plenty of evidence for historic and ongoing systemic gender bias. See, for example, Kyle Jensen, Balázs Kovács & Olav Sorenson, Gender Differences in Obtaining and Maintaining Patent Rights, 36 NATURE BIOTECH. 307, 308 (2018); B. Zorina Khan, Married Women’s Property Laws and Female Commercial Activity: Evidence from United States Patent Records, 1790-1895, 56 J. ECON. HIST. 356 (1996); Deborah J. Merritt, Hypatia in the Patent Office: Women Inventors and the Law, 1865-1900, 35 AM. J. LEGAL HIST. 235, 290 (1991); Carroll Pursell, The Cover Design: Women Inventors in America, 22 TECH. & CULTURE 545 (1981). Dan L. Burk, Do Patents Have Gender?, 19 Am. U. J. Gender Soc. Policy & L. 881 (2011).
For many years, the use of a single male pronoun in legal documents has been frequently interpreted as including all genders of humans as well as other legal persons, such as corporations. In recent arguments regarding AI-inventorship, the USPTO argued that the Congressional rewrite of Section 115 to focus binary gender identities indicates an intent to limit inventorship rights to only human inventors.
- Pre-AIA: “he believes himself to be the original and first inventor.”
- Post-AIA: “such individual believes himself or herself to be the original inventor.”
Of course, our new world also accepts non-binary gender, both under federal law and the law of some states. Interpreting “himself or herself” as particularly limiting is clearly wrong if it excludes non-binary humans from the patenting process. This brings me back to the Patent Act of 1790. It appears clear from the grammatical context that Congressional use of “they” in the 1790 Act was referring to instances what we now call joint inventorship. But, perhaps that early Congress had already stumbled upon a right answer.