Colleen Chien Examines the Inequalities of Innovation

By TAP Staff Blogger

Posted on November 16, 2022


Over the last few decades, the United States has become more innovative, but the gains have been distributed unequally. In 2020, over 50% of new U.S. patents went to the top 1% of patentees, and more than 50% of all patents of U.S. origin were generated by just five states, all coastal. Less than 13% of inventors were women. The economic, geographic, and demographic concentration of innovation highlight how the intersections between two traditionally discrete topics—innovation and inequality—have become increasingly relevant.
- from “The Inequalities of Innovation” by Professor Colleen Chien, Santa Clara University School of Law


In “The Inequalities of Innovation,” Santa Clara University law professor Colleen Chien examines the relationship between inequality, innovation, and patents. Her article shows the complex ways that patents and innovation can either intensify or alleviate different types of inequality.


Professor Chien describes three different types of inequality that are relevant to innovation.

  • inequality of wealth/income, regarding the distribution of economic resources;
  • inequality of opportunity to innovate, which pertains to the production of innovation;
  • inequality of access to innovation, about the affordability and availability of innovation.

In her article, Professor Chien proposes several initiatives that would increase equality through the patent system. The first proposal aims to expand invention capital through the creation of an Office of Small Inventors Advocate, with the aim of leveling the playing field among applicants. Another proposal is the creation of an Independent Office of Public Interest and Partnerships, aimed at increasing access to innovation. Additionally, Professor Chien discusses the need for equity metrics to boost patent entry and success.


Below is an excerpt from the introductory section of “The Inequalities of Innovation” by Colleen Chien (Emory Law Journal, Vol. 72, Iss. 1, 2022).


Those who seek to reduce inequality tend to focus on welfare policies like tax and education. Though patent law may not seem like a natural extension, this Article offers a framework for understanding the intersections between innovation and inequality and suggests how patent policy can help address distributional concerns. Using the patent system as a lever to tackle inequality yields two unique benefits. First, as a form of innovation policy, patent law can spur the development and dissemination of new technologies that raise productivity and real wealth for everyone, thereby avoiding the zero-sum game of redistributing existing wealth. As such, this Article’s prescriptions primarily aim to level up, and not just level, the playing field. Second, an inequalities lens can improve patent law by revealing the mechanisms by which the law both exacerbates and alleviates inequality, in particular through what I call “invention capital”—the trust, resources, know-how, and network of people needed to take advantage of the patent system. This Article calls for more attention to be paid to growing invention capital, in service of spurring innovation that is responsive to the needs of a wider population.


Part I describes a framework for understanding inequality and innovation, centered on the unbraiding of the concept of inequality into three distinct inequalities—economic inequality, inequality of opportunity, and inequality of access. Doing so highlights surprising contrasts: for example, equality of opportunity to innovate, but also some amount of economic inequality—which supports risk-taking and racing for profits—both foster innovation. Through the lens of three illustrative inventions from 1900 to the present, this Part explores the tensions among and between the inequalities of innovation.


Part II uses the patent system as a case study for understanding how the law intensifies as well as alleviates the inequalities of innovation, contributing to the dynamics identified in Part I. A review of the ways in which patent law intersects with each of the inequalities of innovation underscores the importance of “invention capital”—the role models, trust, know-how, and network needed to take advantage of invention—for ensuring broad opportunity to innovate. However, it also reveals that equality of opportunity and equality of access to innovation are both limited by the system’s opacity, lack of meaningful public oversight and public understanding, and structural factors.


Part III builds upon Part II to suggest ways that the patent system can address the inequalities of innovation. First, to safeguard equal opportunity to participate in invention, it proposes creating an office focused on outreach, the Office of the Small Inventor Advocate—modeled after other such offices in federal agencies—responsible for increasing invention capital and know-how among underrepresented and first-time inventors, and leveling up the playing field—for example, through patent-quality technology. Second, to expand access to innovation, it proposes establishing an Independent Office of the Public Interest and Partnerships focused on advancing public understanding of the patent system, particularly by other public agencies, and fostering technology transactions and partnerships that can expand access to innovation. Third, it proposes the introduction and systematic reporting of innovation equity metrics for measuring and tracking, for example, first-time inventing, to track progress toward narrowing the inequalities of innovation.


Read the full article: “The Inequalities of Innovation” by Colleen Chien (Emory Law Journal, Vol. 72, Iss. 1, 2022).


Of Special Note:

This Friday, November 19th, Santa Clara University Law School is hosting the Innovator Diversity Pilots Conference in order to focus on projects and practices that are designed to increase participation in innovation.


From the conference page:

In the US, women represent over 50% of the workforce and 27% of STEM workers, but only 13% of inventors. A growing number of companies, law firms, academics, and agencies are actively experimenting with ways to narrow these and other innovator-inventor gaps* in participation.


Professor Chien organized this conference with Emory University law professor Margo Bagley and the United States Patent and Trademark Office.


Colleen Chien is Professor of Law at Santa Clara University School of Law. Her areas of specialty include patents, empirical studies of intellectual property, international intellectual property, international trade, and technology and social justice. Professor Chien is internationally known for her research and publications on domestic and international patent law and policy issues.


A regular expert speaker before Congress and executive agencies, Professor Chien served on the Biden-Harris Transition Commerce Department Agency Review Team with primary responsibility for the Patent and Trademark Office. From 2013 to 2015 she served as Senior Advisor, Intellectual Property and Innovation to the U.S. Chief Technology Officer in the White House Office of Science and Technology Policy. Additionally, Professor Chien is among the top 20-cited intellectual property and cyberlaw scholars in the U.S., and she has received prestigious awards including the American Law Institute’s Early Career Medal, the Intellectual Property Vanguard Award, and the Eric Yamamoto Emerging Scholar Award.