I’ve been sitting in on some sessions reviewing important cases in Criminal Law and Intellectual Property this summer. I’m struck by a number of the differences between the fields, unsurprisingly, but the one that popped out at me today was that Criminal Law is full of women. The victims, the accused, the examples – these cases have women in them.
Intellectual Property, as pointed out by my colleague, doesn’t. There have been three, maybe five women in the readings so far for that introduction – two playwrights, the wife of an inventor whose corset-boning was the invention that may or may not be able to be patented, and the names of the two women Supreme Court justices who concurred in Bilski.
It worries me slightly, that this is a field I find interesting, and yet its formal texts are so utterly deprived of female actors. The gender of the lawyer is usually not an issue mentioned in the appellate decisions, nor should it be, but I find it hard to find myself in it. I’m not a playwright, my corsets sadly lack boning, and I am unlikely to become a Supreme Court justice anytime soon – is there a spot in the canon of intellectual property law for me? I guess Pretty Woman, the song of the ever-cited SCOTUS case, also featured a theoretical woman. Somehow, I’m not reassured.
It might be worth assembling an intellectual property text that was solely made up of cases about women, just as an exercise in rhetoric. I wonder if there would be enough appellate decisions that cover the basic framework of copyright, patent law and trademark, and then the key issues – fair use, obviousness, confusion. Certainly, this exercise would suffer substantially from the historical depth of the intellectual property subjects. One would probably have to dig up more recent cases that discuss smaller details of the major points of contention. The inventors at the beginning of patent? They’re dudes.
Certainly, it’s not the mere fact that women exist in a canon that make it feminist – although the theoretical book I’m describing could be considered a feminist IP book, it would owe it more to its lens than its content. However, the professor whose materials I have been working with has made an effort to pick non-canon, diverse cases in an effort to keep things fresh. Maybe the “All Women IP Book” would make things even more interesting.