Jordana R. Goodman & Khamal Patterson | 77 Vand. L. Rev. 109

To receive a patent, an inventor must meet certain inventive and procedural standards. Their invention must be novel, nonobvious, and written in such a way that any person skilled in the inventive subject can make and use the invention without undue experimentation. This process is far from objective.

An inventor is not always communicating within their own social circle. An inventor is required to communicate their invention so that a patent examiner believes a person having ordinary skill in the art (“PHOSITA”) would recognize the invention as nonobvious. Moreover, a fictitious skilled person must be able to make and use the described invention without undue experimentation, and a patent examiner will judge whether the patent application’s written description has met this standard. Many inventors choose to navigate this difficult communication path with the help of a patent practitioner; this can either help to ease or exacerbate communication obstacles between examiners and inventors. As shown in this Article, the largely homogenous patent gatekeepers—practitioners and examiners—erect communication barriers to entry for inventors from underrepresented minority groups.

Inventors must ensure the majority-group-based practitioners and examiners recognize valuable distinctions of the invention over current technology and understand how to use the new invention without undue experimentation. When the patent practitioner and examiner communities do not share the same primary cultural experience as an inventor or an invention’s expected users, this hurdle compounds. Some inventors are disproportionately burdened when describing their invention; some must supplement the practitioners’ and examiners’ lack of systemic cultural capital more than others.

Through a case study of Black hair-care patents, this Article adds to the literature by highlighting hermeneutical injustices for Black inventors through a cultural-capital lens. This Article is the first in a series of papers showing how the majority-culture bias in patent law and the lack of resources to bridge minority- and majority-group-derived cultural-capital gaps disparately affect those inventing in minority-group cultural spaces. The cultural gap between minority-group inventors and patent practitioners, nearly all of whom are majority group, leads to inadequate and unequal representation and decisionmaking. This Article calls upon the United States Patent and Trademark Office (“USPTO”), patent attorneys, and academics to create a more equitable patent system by altering patent practice, legal education, and ethics rules.

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AUTHORS:

Jordana R. Goodman

Khamal Patterson