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Hastings Race and Poverty Law Journal

Abstract

The political and jurisprudential treatment of racespecific patents, patents on inventions that are aimed at certain racially or ethnically defined groups, in the United States has the potential to legitimize the reification of race and severely impact society's understanding of racial disparities. Accordingly, with the increase in race-specific patents, and race-based technology in general, the way that the courts will construe racial categories in claim terms will determine the pattern and practice of future race relations in the United States. This note examines the role of a judge and an inventor in the potential litigation of a racespecific patent both of whom are in a position to define what we, as a society, understand as race. If judges construe racialized claim terms as a genetic category or as an inherited trait then members of our society will no longer understand racial disparity - such as unemployment rate, educational achievement gap, and the disproportionate representation in the criminal justice system - as a result of a long history of discrimination and injustice. This note, therefore, is not at issue with the commodification of race or the discriminatory implications of the actual granting of exclusive rights to inventors of race-specific patents. Rather, this note finds issue with the impact of the court's construction of racialized claim terms as genetic categories on the future pattern and practice of this society and offers judges a new method of interpretation, intersectionality.

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