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72 Emory L.J. 1 (2022-2023)

handle is hein.journals/emlj72 and id is 1 raw text is: THE INEQUALITIES OF INNOVATION Colleen V. Chien* ABSTRACT 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 (c) Professor, Santa Clara University School of Law and Co-Director, High Tech Law Institute, 2013-2015 White House Senior, Innovation and Intellectual Property. Thanks to Jeanne Fromer, Daniel Hemel, Barton Beebe, Peter Lee, Lisa Ouellette, Gregory Day, Michael Shuster, Robert Merges, Lateef Mtima, Carol Rose, Eunice Lee, Mark Lemley, Pam Samuelson, Sonya Katyal, Kali Murray, David Schwartz, Brian Love, Eric Goldman, Tyler Ochoa, Deep Gulasekaram, David Sloss, Jonah Probell, Michael Risch, and audiences at multiple faculty forum and legal colloquium, including at MOSAIC, WIPIP, IP Scholars, NYU School of Law, Santa Clara School of Law, Denver Strum School of Law, Hastings School of Law, and Arizona Law School for their comments and feedback. Thanks to Erik Perez, Rodney Swartz, Jonathan Collins, Zachary Daly, Stella Collet, and Nicholas Halkowski for excellent research assistance and to the student editors at the Emory Law Journal for their patient and careful editing of the article. Thanks as always to Dirk Calcoen.

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