Getting a Grip on the Corset: Gender, Sexuality, and Patent Law

Over twenty years ago, Susan Brownmiller stressed the need to get a grip on the corset when considering femininity. In patent law, the corset case, Egbert v. Lippmann (1881), is a canonical case explicating the public use doctrine. Using a historical exploration of Egbert, this paper seeks to get a grip on the corset as part of the burgeoning project to consider the intersections of gender and intellectual property from a feminist perspective. The corset achieved the pinnacle of its use by American women during the decades between the Civil War and the turn of the twentieth century. It was both the near-constant companion of the vast majority of women in the United States and a technological wonder. Like the more celebrated technologies of the era, such as the telephone, the telegraph, and the light bulb, the corset was the product of many inventors, who made and patented improvements and fought about their rights in court. As American women donned their corsets, they had a daily intimate relationship with a heavily patent-protected technology. The corset was deeply embedded both within the social construction of gender and sexuality as a marker of femininity and respectability, and within the United States patent system, as a commercial good in which many claimed intellectual property rights. Getting a grip on the corset, then, offers a way to simultaneously consider gender, sexuality, and patent law

Adultery by Doctor: Artificial Insemination, 1890–1945

In 1945, American judges decided the first court cases involving assisted conception. The challenges posed by assisted reproductive technologies to law and society made national news then, and have continued to do so into the twenty-first century. This article considers the first technique of assisted conception, artificial insemination, from the late nineteenth century to 1945, the period in which doctors and their patients worked to transform it from a curiosity into an accepted medical technique, a transformation that also changed a largely clandestine medical practice into one of the most pressing medicolegal problems of the mid-twentieth century. Doctors and lawyers alike worried whether insemination using donor sperm was adultery by doctor, producing illegitimate offspring. Drawing upon the legal and scientific literatures, case law, popular sources and medical archives. I argue that insemination became identified in medicine and law as a pressing problem at mid-century after decades of quiet use because of the increasing success of the technique, increasing patient demand, and increasing use—three interrelated trends that led to increasing numbers of babies whose origins were in the test tube. In examining the history of a medical procedure becoming a legal problem, I also trace the development of a medical practice in the face of legal uncertainty and the shifting control of the medical profession over assisted conception. I argue that doctors modified the way they treated patients in response to perceived social and legal condemnation of artificial insemination, keeping tight control over all aspects of the procedure, but that doctors\u27 persistence in meeting patient demand for fertility treatments despite such condemnation helped make artificial insemination into a medicolegal problem. Once it became identified as a medicolegal problem, artificial insemination became the subject of a broad social discussion, in which medical voices did not receive automatic deference, and medical control was challenged

Rethinking Body Property

Body products, including blood, gametes, and kidneys, are a routine part of contemporary medicine. They are also controversial. There is a strong preference for donated gifts, based on an intuition that gifts are pure, altruistic, and healthy, and that purchased products (commodities) are tainted, exploitative, and dangerous. Law and policy reflect this dichotomy, preventing market exchanges either by declaring body products non-property or banning sales by the supplying body. Yet with growing scarcity leading to injustice in the allocation and harvesting of body products, calls to allow sales have been increasing, motivating proposals to increase supplies by compensating bone marrow and breast milk suppliers. This Article contributes to these pressing debates in two ways. First, it uses original historical research to demonstrate that the morally inflected gift/commodity dichotomy is a historical artifact, neither universal nor inevitable, and thus need not be the assumed basis for law and policy. Second, in a novel use of the intellectual history of property, it brings body products for the first time into the framework of recent progressive property scholar-ship to rethink body property. The first body products, disembodied breast milk and blood, entered medicine at the turn of the twentieth century. I argue that for a half century, these body products were property-in-action, bought and sold as a means to the medically defined ends of advancing recipient and supplier health. The dichotomy and condemnation of sales emerged only lat-er, as body products transitioned to property-at-law. I argue that the focus on supplier compensation was not a needed correction to marketplace harms, as commonly assumed, but rather a result of (i) medical opposition to single-payer health care, (ii) product liability law, and (iii) racism. This transition, analyzed in light of historical trends in property theo-ry, is revealed as a shift to a narrower understanding of body products as property, presumed to satisfy only the individual preferences of market participants. Using this analysis, this Article offers guidance for rethinking body property. Exposing body product exceptionalism within the law of property, this Article uses history to demonstrate how body products, like other forms of property, can have purposes beyond individual preference satisfaction. In place of regulation focused on banning market-alienability, the law of body products as property can be theorized and rewritten to focus on the ends of patient treatment and public health, incorporating the use of regulated markets to serve the goals of increased access to medical treatment while also avoiding supplier exploitation

The Administration of Genius: Expertise and the Patent Bargain

This Article investigates the role of the patent clerk in the nineteenth century development of the patent system to provide a new history of the foundational metaphor of the patent system, the “patent bargain.” The “patent bargain” refers to the exchange represented by each issued patent, in which the inventor reveals a novel idea in return for a limited-term monopoly to exploit that idea. Today, critiques of the patent system focus on whether the patent bargain is a good deal, that is, whether the economic interests of inventors and the public are served by issued patents. Drawing upon nineteenth-century patent manuals and regulations, the annual reports of the patent office, and case law and statutes, as well as the history of technology and of the early administrative state, this Article resituates the patent bargain as a metaphor explaining the actions of patent bureaucrats when deciding which applications to grant. In a series of nineteenth-century experiments with the operation of the patent system, Congress adopted different approaches to the deployment of expertise within the executive branch in order to best serve the public and private interests at stake in patent applications. Each experiment raised a storm of controversy about the definition and use of expertise within a democratic republic. Deciding what patent clerks ought to be doing required consideration not only of the public interest in patents, but also of the role of the administrative state. The ultimate resolution of these controversies about the administration of genius depended both on the transformation of the patent office into the first modern federal agency and the development of a consensus that the patent bargain appropriately described the task of these executive branch experts

Intellectual Property and Public Health – A White Paper

On October 26, 2012, the University of Akron School of Law’s Center for Intellectual Property and Technology hosted its Sixth Annual IP Scholars Forum. In attendance were thirteen legal scholars with expertise and an interest in IP and public health who met to discuss problems and potential solutions at the intersection of these fields. This report summarizes this discussion by describing the problems raised, areas of agreement and disagreement between the participants, suggestions and solutions made by participants and the subsequent evaluations of these suggestions and solutions. Led by the moderator, participants at the Forum focused generally on three broad questions. First, are there alternatives to either the patent system or specific patent doctrines that can provide or help provide sufficient incentives for health-related innovation? Second, is health information being used proprietarily and if so, is this type of protection appropriate? Third, does IP conflict with other non-IP values that are important in health and how does or can IP law help resolve these conflicts? This report addresses each of these questions in turn

Intellectual Property and Public Health - A White Paper

On October 26, 2012, The University of Akron School of Law\u27s Center for Intellectual Property and Technology hosted its Sixth Annual IP Scholars Forum. In attendance were thirteen legal scholars with expertise and an interest in IP and public health who met to discuss problems and potential solutions at the intersection of these fields. This report summarizes this discussion by describing the problems raised, areas of agreement and disagreement between the participants, suggestions and solutions made by participants, and the subsequent evaluations of these suggestions and solutions. Led by the moderator, participants at the Forum focused generally on three broad questions. First, are there alternatives to the patent system or specific patent doctrines that can provide or help provide sufficient incentives for health-related innovation? Second, is health information being used proprietarily, and if so, is this use appropriate? Third, does IP conflict with other non-IP values that are important in health, and how does or how can IP law help resolve these conflicts? This report addresses each of these questions in turn

Intellectual Property and Public Health – A White Paper

On October 26, 2012, the University of Akron School of Law’s Center for Intellectual Property and Technology hosted its Sixth Annual IP Scholars Forum. In attendance were thirteen legal scholars with expertise and an interest in IP and public health who met to discuss problems and potential solutions at the intersection of these fields. This report summarizes this discussion by describing the problems raised, areas of agreement and disagreement between the participants, suggestions and solutions made by participants and the subsequent evaluations of these suggestions and solutions. Led by the moderator, participants at the Forum focused generally on three broad questions. First, are there alternatives to either the patent system or specific patent doctrines that can provide or help provide sufficient incentives for health-related innovation? Second, is health information being used proprietarily and if so, is this type of protection appropriate? Third, does IP conflict with other non-IP values that are important in health and how does or can IP law help resolve these conflicts? This report addresses each of these questions in turn