Journal of Intellectual Property Law

Article Title

Patent Performativity


Gender bias is rife in the patent system; a large and growing body of empirical literature demonstrates the exclusion of women from the patent system at every level. Such pervasive marginalization cannot be explained by the paucity of women in STEM fields. Rather, more fundamental discriminatory mechanisms must be at work. In this paper I examine one aspect of such biases, arguing that patents operate as performatives, that is, as social assemblages that enact what they disclose, and that create their own social facts. To demonstrate patent performativity, I briefly trace the development of performative concepts, from Austinian declarations, through Butlerian enactments, to Barnesian social constitutives. I then indicate how patents function in each of these respective modes of performativity, first as performative speech acts, then as normative inscriptions, and ultimately as mechanisms of social fabrication. Drawing on these observations, I identify what it means to perform patents, and suggest some practical and doctrinal implications of patent performativity, particularly for the “gender gap” that is manifest in the patent system.