Emory Law Journal


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. But rather than any single inequality, this Article argues, multiple inequalities—of income, opportunity, and access—have relevance to innovation. Examining the inequalities of innovation, separately and together, exposes the tensions, at times surprising, between notions of equity. When mapped onto patent law, an inequalities framework also reveals how patent law can exacerbate inequality by providing enhanced returns to “invention capital”—the role models, trust, know-how, and networks required to take advantage of inventing. But an inequalities framework also shows how patented innovation can improve conditions for the worst-off, by providing paths to prosperity and hastening the creation and diffusion of innovation across classes, even as it makes the rich richer.

Building on the “inequalities” framework described above, this Article offers a set of legal and administrative proposals grounded in patent law for addressing inequality concerns. To ensure equal opportunities to participate, this Article proposes the creation of an Independent Office of the Small Inventor Advocate, akin to the National Taxpayer Advocate, that would have responsibility for outreaching to and increasing invention capital and know-how among first-time, underrepresented, and under-resourced inventors, and leveling up the inventing playing field, for example through universally accessible patent-quality technology. To expand access to innovation through partnerships and expand public understanding and oversight of the patent system, by other agencies, for example, this Article proposes the introduction of an independent Office of Public Interest and Partnerships in Innovation. Finally, introducing and centering equity metrics, like the number of first-time innovators and gaps in the rates, can support equitable growth in innovation.

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