Increasing gender and ethnic representation among inventors in America’s IP System has long been a goal for the USPTO along with other organizations in the intellectual property space–and not just for altruistic reasons either. According to research, innovation in the U.S. could quadruple if women, minorities, and children from low-income families became inventors at the same rate as men from high-income families. Scholar Prof. Lisa Cook suggested that this could also increase U.S. GDP by as much as 4.4% or an annual GDP of almost 950 billion dollars.
That’s why this Buzzfeed story on Katrina Parrott, an educated black female creator and accomplished professional–whose attempts to patent diverse skin tone accurate emojis unfortunately failed–caught our attention.
As advocates for IP education, we wanted to understand more about what happened here and what insights we could learn. To help us dive deeper, we reached out to IP expert Prof. Lateef Mtima of Howard University Law School and Executive Director at the Institute for Intellectual Property & Social Justice (IIPSJ) with a few questions of our own. Take a look at what he had to say below:
Lateef, from the outside looking in, it appears Ms. Parrott did everything right and had all the best resources to get her patents. Is there something we’re missing about her story?
Mtima: The key problem here is that from what I can glean from the story, the USPTO seems to have properly denied the patent application; we would have to know more about what she’s seeking to patent – for example, software programs are usually not patentable because they embody mathematical algorithms which are considered natural laws or relationships. And the mere “idea” for doing something is almost never protectable under the IP law, except sometimes as secret information, which unfortunately it seems she shared with Apple.
Interesting perspective! Perhaps this says something about the nature of seeking patents versus say copyrights, trademarks or trade secrets. Do you think Ms. Parrott could have used a different strategy to protect her innovation of the emojis in the marketplace?
Mtima: Copyright protection is available for original creative illustrations and other expressive works, and trade dress is available for distinctive product packaging which helps to distinguish one supplier of a product from other suppliers. Think: distinguishing Parrott’s emojis from Apple’s emojis, the way the golden arches distinguish McDonald’s hamburgers from the hamburgers of other suppliers. In order to determine whether these types of IP protection would be applicable one would begin by reviewing each of Ms. Parrott’s emojis. And again, a secret plan to develop “multi-ethnic emojis” might be more amenable to trade secret protection under the right circumstances.
Someone, especially a creator from an already underrepresented community, might read the Buzzfeed article and think “well if there’s a chance that any huge corporation can capitalize off my idea and then beat me in court…what’s the point of seeking IP protection?” What would be your response to that?
IP can be stolen by anyone – not just huge corporations; in fact, that’s one of the reasons for seeking legal protection for your IP. But just the same with other types of property protection, you have to select the right kind of protection and use it properly – you wouldn’t buy a car alarm to protect your home and if you bought a security system for your home you’d read the manual to make certain that it was set up properly.
We can see that Katrina Parrott is a highly educated, experienced professional but even she seems to have had a hard time with the current IP system. What do you think her story says about the state of intellectual property education? Where do we in the IP education world need to improve?
I don’t try to diagnose electrical wiring issues in my home or illness symptoms in my personal health – I’m a lawyer not an electrician or a doctor and I respect that my training does not cover these other fields of expertise. On the other hand, like most people, I do try to read up on basic personal health and home maintenance news articles written for the layperson.
The problem in our nation is that even though IP today affects every aspect of daily life, basic IP education for everyday people is not widely available. Grassroots IP education should be a part of K-12 education, community college curriculum, and adult education programs; Ms. Parrott’s story demonstrates what IIPSJ has articulated for the past two decades: everyone produces IP and so everyone should know the basic rules for protecting their IP. America needs a national IP narrative and agenda.
As Executive Director at IIPSJ, you focus on matters at the intersection of social justice and IP law. What are some resources and educational materials that you’d suggest to anyone interested in learning more about these issues?
The USPTO has excellent patent and trademark education resources and at IIPSJ we continue to explore ways in which to raise public awareness about them. As for copyright, non-profit organizations such as the Copyright Alliance and the Authors Alliance offer public education materials, and the Copyright Alliance recently initiated a copyright registration program to help individuals to register their work.
For those who already have some knowledge of the IP system but need pro bono legal assistance, the USPTO has a free Patent Pro Bono program and the Volunteer Lawyers for the Arts offers pro bono copyright assistance throughout the country. IIPSJ also offers various IP education materials through our website, through our Creative Control program, and through our monthly “IP for the People” online webinar – one need only visit our website at iipsj.org to connect to these free resources.
Disclaimer: Nothing in this article shall be construed as legal advice.
Further Resources on Michelson IP
The Michelson Institute for Intellectual Property, an initiative of the Michelson 20MM Foundation, provides access to empowering IP education for budding inventors and entrepreneurs. Michelson 20MM was founded thanks to the generous support of renowned spinal surgeon Dr. Gary K. Michelson and Alya Michelson. To learn more, visit 20mm.org.