While communication and identity formation depend heavily on language, word choices frequently reflect unintentional gender stereotypes. Gender stereotyping is generally interwoven in language and becomes a defining factor in characterising men and women in different professions.
Often we have seen, in legislation, that in situations where there is some ambiguity with regard to gender, the pronoun “he” is used. Usually, the use of male gender in statutes inhibits gender equality. It is for this reason that an effort is being made to replace gender-specific words with gender-neutral words.
The “universal he”, a creation of the English language, has crept into Indian statutes, including the Indian Patents Act.
The Indian Patents Act, 1970, uses the expressions “he”, “his or “him” 248 times; the Indian Patents Rules, 2003, uses the said expressions 146 times; and the Manual of Patent Office Practice and Procedure (version 3, 2019), which is considered a practical guide to the effective prosecution of patent applications in India, uses the expressions 92 times.
The controller, inventor, applicant or patent agent is always referred to as “he” and so is the notional person skilled in the art. In a rare exception, Ms P Sita, as being the person skilled in the art, was a creation of the judiciary in the Enercon decision before the Intellectual Property Appellate Board.
Having said this, section 13(1) of the General Clauses Act, 1897, states as follows: “Unless there is anything repugnant in the subject or context, (1) words importing the masculine gender shall be taken to include females”.
In order to create a more inclusive and equitable society, many countries, including international organisations like NATO and the UN, are making efforts to adopt gender-neutral language in their legal systems and avoid the use of gender-specific pronouns like “he” and “she” that perpetuate gender biases and exclude non-binary individuals.
Gender-neutral language acknowledges the existence and rights of non-binary individuals, who do not identify as male or female. This is especially crucial in patent law, which is a rapidly evolving field with contributions from diverse professionals. Embracing “they” as a gender-neutral pronoun respects and validates the identities of non-binary patent holders, inventors and applicants.
A bill was proposed in parliament to amend the Indian Penal Code, the Criminal Procedure Code, and the Indian Evidence Act to ensure that “any man” or “any woman” is amended to “any person” in parts of the act relating to sexual offences. The issue was raised in a public interest litigation before the Supreme Court, which declined to pass any orders, stating that this was the domain of parliament.
If all gender-specific law is made gender-neutral with the terms “men”, “women” and “transgender” being replaced with “any person”, then there will be no need to introduce legislation to address gender-specific problems.
The use of gender-neutral forms includes replacing male-male forms such as “businessman” and “mankind” with gender-unmarked forms such as “executive” and “humankind”. In the field of intellectual property, referring to an applicant or controller as “he/she” rather than simply “he” is a step towards minimising gender stereotypes.
There is no compromise in using “him/her” to address people of respective genders, but at the same time using terms such as “we”, “they”, “colleagues”, “team members”, “workforce” etc., give a sense of all being in the same ecosystem and measured on the same weighing scale. In a nutshell, avoid using language that reinforces stereotypical images or uses gender-specific prefixes or suffixes.
Small change for bigger movement
The pillars that govern the country should also change with it, especially the law that is the backbone of what is the largest democracy in the world. Ultimately, it rests on the legislators to ensure that gender-specific words and taglines are used in legislation so far as it is practicable, and at no more than a reasonable cost to brevity or intelligibility.
The onus lies with us to use gender-neutral language and pass it on to future generations. We must seek alternatives to language that patronises or trivialises women. Treating men and women as identical in every case is not practicable but inculcating the habit of addressing men and women as one is a real start. Words with no biological associations may seem stark on paper, but the lived result will be more nuanced.
To implement gender-neutral language in patent law, statutory amendments may be required. Policymakers and legislators must work together to draft and pass these amendments, emphasising the importance of a more inclusive legal system.
Archana Shanker is a senior partner and Priya Singh is a managing associate at Anand and Anand in New Delhi
B-41, Nizamuddin East,
New Delhi 110013, India
T: +91 120 4059300