Special Issue on Law, Women and Commerce: Inspire Inclusion

Justifications of intellectual property rights are, while subject to evolution across time and contexts, recognised as rewarding one’s labour, incentivising innovation and further creation. The inclusive approach to the subject matter of protection, however, seems to be reflected in gender inclusiveness. At least statistics portray such a disparity. In 2010, women inventors in patent applications in the US accounted for nearly 10% of total inventors and by 2019 this proportion had merely risen to 12.4% (OECD, 2024) In Europe, the rate of women inventors was %13.2 in 2019, the UK showing a similar figure. (EPO, 2022).

The pursuit of gender equality within the realm of IP is undeniable, and recently reiterated in WIPO’s policy guideline on gender equality and the empowerment of women for the period of 2024-2027, deeming this a shared responsibility for every member state. EUIPO determined five primary goals of its strategic plan 2030 and opened it to public consultation to deal with identified challenges, none of which, however, explicitly mentions gender disparity. Nevertheless, the EUIPO plan, and others as such, represents an opportunity to address this disparity.

Whether the status quo of disparity indicates a failure of IP systems or whether it is IP’s duty to redress inequalities remain unanswered. Current attempts to address this challenge, however, seems to have fell short of the mark. It is material to indicate gender disparity in the context of intellectual property protection, however, taking active steps to tackle it is more imperative.

March marks a unique occasion to praise all exceptional women shaping the modern world. Among them are female innovators—outstanding creative minds behind countless trailblazing technologies awarded patent protection, recognised for their novelty and inventiveness incentivised by law and desired by society. From everyday appliances to manifold scientific breakthroughs and life-changing innovations, patent applications have invariably named women as inventors.

However, the somehow disappointing commercial reality of the patent system tends to throw the spotlight on the corporate owner of the patent whilst overshadowing actual creators who, by the letter of the law, must be natural persons whose names are familiar only to those reading patent applications. A closer inquiry into patent databases reveals an unsatisfactory level of recognition for women’s contribution to the development of patentable inventions, which has been directly confirmed by a low number of patent applications listing women as primary inventors.

According to the study concluded by the European Patent Office in November 2022, women represent only 13.2% of inventors named on patent applications in all 39 EPO states. The number stands for the so-called ‘women inventor rate’ (WIR) and indicates that among individuals publicly recognised for their involvement in developing technologies claimed by patents granted in Europe, not even 1 in 7 are female inventors. Data collected over 40 years confirm a continuous increase in the percentage of women among the total number of European inventors, with just 2% reported in 1978 up to the current rate of over 13% reached in 2019. Yet, despite the undeniable rise in number, the pace of changes leaves much to be desired. Interestingly, among EPO contracting states, the ones with the highest WIR are Latvia (30.6%), Portugal (26.8%), and Croatia (25.8%).

Meanwhile, countries that have established a reputation for granting the largest number of patents overall, such as the United Kingdom, Germany, and France, are lagging far behind, with Germany ingloriously coming third last in the ranking, with only 10% of inventors being women. The EPO study additionally denotes sectoral variations in women’s involvement in inventive activities. Since 1990, chemistry has remained an undisputed leader, with WIR reported to be at least twice as high as other fields of technology.

A more detailed look shows that within the broadly concerned chemistry, applications in biotechnology and pharmaceuticals stand out as the only ones that can boast over 30% of female inventors. Women are also more likely to appear on applications filed by universities than companies in the private sector. Worryingly, the data suggest that among the indicated numbers, women are more frequently a part of larger research teams rather than named as individual inventors and rarely appear in senior positions.

Acknowledging the problem not only from the patent perspective but also in other creative fields like designs and trademarks, international organisations have continuously engaged in actively promoting inventive activities among women. In response to the observed underrepresentation of women in innovative sectors and to adequately address gender and improve diversity in IP, in 2023, the World Intellectual Property Organisation (WIPO) produced the Intellectual Property and Gender Action Plan (IPGAP) – a strategic document for its newly created IP and gender program. The program is guided by the WIPO’s mission to “lead the development of an IP ecosystem that promotes and encourages women’s engagement in IP and innovation”.

WIPO’s new mission will be realised in three areas. First, to collaborate with governments and stakeholders to integrate a gender perspective into legislation and policies. Second, to encourage research aimed at investigating the gender gap in IP and devising ways to close such identified gap. And lastly, to launch and pilot gender-oriented projects in IP. On top of the said initiative, WIPO has adopted the Policy on Gender Equality for 2024-2027 to ensure equal participation of women and men in the innovation ecosystem and promote diversity within the Organisation’s internal structure with the idea to gradually implement gender equality in all essential areas of work and fields of intellectual property.

Concurrently with global initiatives, the EPO commemorated the most prominent female inventors in the ‘Women inventors’ feature published in 2022. The Office also remembered winners of the European Inventor Award – a prestigious honour recognising outstanding creative minds worldwide. In the 2022 edition, female inventors won in three categories, including the ‘Lifetime Achievement’ Award for Katalin Karikó, whose studies on mRNA were behind the successful development of the COVID-19 vaccines. At the European Union level, the observed gender gap in innovative projects is also tackled by regional institutions, including the European Union Intellectual Property Office (EUIPO). EUIPO actively supports the Girls Go Circular initiative launched in 2020, addressed to young women aged 14-19 and aimed at broadening their knowledge about the circular economy and sustainable development while also helping to develop leadership skills.

Over the past three years, Girls Go Circular, in collaboration with the European Commission, has organised the Women and Girls in STEM Forum directed at bridging the gender gap in STEM, with the last edition in December 2023 attracting over 2,800 participants. According to the latest press releases, the upcoming EUIPO Strategic Plan 2030 (SP2030) additionally aims to transform the IP ecosystem to produce a more inclusive and open environment for female innovators, with women envisioned as leaders in driving creativity in Europe. With the consultation phase concluded on 16 February 2024, we are currently awaiting the publication of prospective outcomes and a detailed agenda for the SP2030’s further development.

The advancement of technology introduces many new possibilities to improve quality of life and the way of work. However, the wrong use of technology can lead to unwanted consequences, including, but not limited to, further disadvantages for certain groups of the population and increased inequality and discrimination in society. The impact of technology has been a longstanding debate, not only from the perspective of the consequences of technology deployment but also concerning the technology sector as a whole. The sector has been under scrutiny for a lack of gender diversity, particularly among AI professionals, with only 22% being women globally. There is a need for concrete policy actions to foster women and girls in this sector.

Last year, UNESCO introduced the Women4Ethical AI expert platform, which works towards supporting governments' and companies' efforts to advance gender equality and inclusive AI systems. The platform advocates for non-discriminatory algorithms and data sources, as well as equal representation of women in the design, use, and deployment of AI. Moreover, designing AI systems for good should also be at the forefront of the ethical AI agenda.

Forbes recently published a story titled "AI For Justice: How A Female Founder Builds The Case For Lawyers," highlighting the achievements of a female entrepreneur in breaking the glass ceiling to transform the legal industry and promote the ethical use of AI systems. The company serves as a platform to help lawyers gather evidence and conduct research on legal violations across domains, from privacy and data breaches to securities and financial fraud, to consumer protections, with a focus on class-action lawsuits. The hope is for more inspiring stories like this, where women take on leadership roles in the ethical AI movement.

As technology is rapidly advancing, more policy-driven instruments are required to make the systematic changes!

Competition Law, which has long been associated with efficiency, neutrality and objectivity, is being called to embrace the gender lens in its substantive assessment, enforcement and theoretical underpinning. In 2018, the OECD Report evaluated the pursuit of gender equality as a public interest goal for competition law. In 2023, the OECD adopted the Toolkit on Competition Law and Gender.

The Toolkit finds, among others, that gender can influence consumer decision-making and the demand and supply substitutability of the market, which then impact the market delineation, an important element in the evaluation of market power in competition law enforcement. Second, gender, e.g. gender-based targeted sales in the digital market, can impact post-merger market concentration levels in merger regulation. The Toolkit recommends a gender-sensitive approach throughout the lifecycle of competition cases, ranging from setting enforcement priorities, investigation, data gathering, and substantive assessment to remedy design and compliance.

Scholars such as Kati Cseres advocate for a feminist approach to competition law, where the gender divisions that bifurcate modern society, including legal rules, formal and informal institutions and enforcement practices, should be further examined to derive implications on competition law development.

As the rise of the digital economy compels the world to reconsider how market dynamics work in real life, the research on gender and competition law stimulates a potential paradigm shift. Competition law, once closely coupled with economic theories of market, posits itself more as a legal institution to achieve a market reflecting embraced societal values in time of challenges.