Monday, February 14, 2011

Swanson, Getting a Grip on the Corset: A Feminist Analysis of Patent Law

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Getting a Grip on the Corset: A Feminist Analysis of Patent Law is a new article by Kara W. Swanson, Northeastern University School of Law.  It is forthcoming in the Yale Journal of Law and Feminism.  Here's the abstract:

Over twenty years ago, Susan Brownmiller stressed the need to "get a grip on the corset" when considering femininity. In patent law, the "corset case," Egbert v. Lippmann (1881), is a canonical case explicating the public use doctrine. Using a historical exploration of the Egbert case, this paper seeks to "gets a grip" on the corset as part of the burgeoning project to consider the intersections of gender and intellectual property from a feminist perspective. The corset achieved the pinnacle of its use by American women during the decades between the Civil War and the turn of the twentieth century. It was both the near-constant companion of the vast majority of women in the United States and a technological wonder. Like the more celebrated technologies of the era, such as the telephone, the telegraph, and the light bulb, the corset was the product of many inventors, making and patenting improvements, and fighting about their rights in court. As American women donned their corsets, they were enacting a daily intimate relationship with a heavily patent-protected technology. The corset during these decades was deeply embedded both within the social construction of gender and sexuality, as a marker of femininity and respectability, and within the United States patent system, as a commercial good in which many claimed intellectual property rights. Getting a grip on the corset, then, offers a way to simultaneously consider gender, sexuality, and patent law.

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After a consideration of what it means to make a feminist analysis of patent law in Part I, in Part II I detail the history of the corset as an invention, using patent records, published opinions, and archival court records. Part III situates this little-known history against the existing historical understanding of the corset as an aspect of female fashion that reinforced gender roles and policed the boundary between public and private, and also uncovers the role of the corset in the courtroom as a witness to women’s sexual activities. Part IV contains an archivally-based excavation of the much-cited and foundational Supreme Court decision, Egbert v. Lippmann, 104 U.S. 333 (1881), in which a patent to an improvement in corsetry was at stake. In Part V, I use the accumulated understandings of the corset as technology, garment and object of legal scrutiny to get a grip on the corset in patent law, making a feminist analysis of the public use doctrine as defined in Egbert.

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