Taboo Patents with Andrew Gilden & Sarah Rajec

My guests today are Andrew Gilden, Southwestern Law School, and Sarah R. Wasserman Rajec, William & Mary Law School. They join me today to discuss their recent paper, Patenting the Taboo: Sex, Drugs, and Abortion, recently published in the Yale Journal of Law and Technology. It’s a really fun article that looks at patent applications in three taboo spaces: sexual pleasure, illicit drugs, and abortion technologies. Some of the themes are very similar to ones Andrew Jennings and I highlight in our recent paper, Vice Capital, in which we interview founders and investors in these same spaces. I highly recommend their paper, even if you don’t have a particular interest or expertise in patent law.

Show Notes

About Andrew Gilden

About Sarah Rajec

About Kim Krawiec

Gilden, Andrew, and Sarah R. Wasserman Rajec. "Patenting the Taboo: Sex, Drugs, and Abortion." Yale Journal of Law and Technology, forthcoming (2025).

Gilden, Andrew, and Sarah R. Wasserman Rajec. "Pleasure Patents." BCL Rev. 63 (2022): 571.

Jennings, Andrew K., and Kimberly D. Krawiec. "Vice Capital." UC Irvine Law Review 15 (2025): 427.

Transcript

[00:00] Andrew Gilden: Like, oh, this vibrator is for sad couples in the 70s. This vibrator is for happy trans couples in the. In the 90s.

[00:09] Kim Krawiec: Hey. Hey, everybody. Welcome to the Taboo Trades podcast, a show about stuff we aren't supposed to sell, but do anyway. I'm your host, Kim Kravik. My guests today are Andrew Gilden of Southwestern Law School and Sarah Riotts at William and Mary Law School. They join me today to discuss their recent paper, Patenting the Sex, Drugs and Abortion, which was recently published in the Yale Journal of Law and Technology. It's a really fun article that looks at patent applications in three taboo sexual pleasure, illicit drugs, and abortion technologies. Some of the themes are very similar to ones Andrew Jennings and I highlight in our recent paper, Vice Capital, in which we interview founders and investors in these same spaces. I highly recommend their paper even if you don't have a particular interest or expertise in patent law. Hi, guys. Thanks for joining me today.

[01:13] Sarah Rajec: Hello.

[01:14] Andrew Gilden: Thanks for having us.

[01:15] Kim Krawiec: So why don't we start by just having each of you introduce yourselves to our listeners.

[01:20] Sarah Rajec: Hi, I'm Andrew Gilden. I'm a professor of law at Southwestern Law School in Los Angeles. I teach there's a property, intellectual property, copyright built trust in the States. And my research focuses on various intersections of law, technology and culture with a real focus on how new technologies impact our understandings of gender and sexuality.

[01:44] Andrew Gilden: And I'm Sarah Riot and I am a professor at William and Mary Law School where I teach torts in the first year curriculum and I teach patent law and international IP courses as well. My research goes in sort of both the direction of patent law type topics and international IP topics as well. And this is the conversation today is about one, one strain of that where Andrew and I have been, have been working together. And so I'm looking forward to getting into it.

[02:18] Kim Krawiec: We'll cut straight to the topic for today, which is this great paper you guys have in the Yale Journal of Law and called Patenting the Taboo Sex, Drugs and Abortion. And this is part of, I guess maybe a series is too much, but it does follow up on a prior paper that you guys had. So can you talk just a little bit then about this paper, but also if you don't mind going into a little bit about the prior paper, which I believe was called Pleasure Patents. Is that the right. Yeah. Yes. Yeah. And so that was also fascinating to read about that as well. So I don't know who wants to start, but I'll kick it over to either one or both of you.

[03:01] Andrew Gilden: Yeah. So maybe I'll take that. And Andrew, you can add on to the story of sort of how we got into this, this area which has ended up being sort of pretty rich and interesting to explore. But it started, I had, I had read, I think the movie Hysteria came out and it talked about how Victorian doctors used vibrators on women in sort of a medical, as medical treatment. And I think some of that's been debunked or at least questioned. But at the time I sort of piqued my curiosity and I thought, I wonder if there's patents on that. So I went looking and I found some and I found that they were categorized as like surgical instruments. And I thought that was really interesting. And it was sort of like this, the, the seed of this medicalization idea about these. And I also was doing a fellowship, I wasn't even on the tenure track at the time. And I thought that seems like a post tenure project. And so I talked about it with some of my friends who are also fellows and visiting, visiting associate professors. And I kept a folder just of interesting things that either I found or they'd send me over the years. And then, and then one year post tenure, finally Andrew and I were talking at an IP scholars conference over the cocktail hour and we said should, should we just get together all these patents, should we, should we really look at them and see if there is anything of interest there? And we did. And I think the sort of categorization as medical devices that, that piece of it didn't end up going anywhere. But as we read all of these patents and emailed back and forth about it, we started to see the sort of really interesting development of how, how the things were conceived, how people thought of them, what they described as their usefulness. And so that we realized that the patents could be a good way because they are these public documents. And we'll talk about that more in a minute. But because they're these public documents and they're required to explain sort of what, what the inventor thinks is the usefulness of the invention, they were a great way to see how inventors or the patent office or society thought of these sorts of devices. So that was, that was the pleasure patents piece of it. And then we sort of, this became an interesting way to look at different areas. And so we decided also to look then at the drugs and the abortions as other kind of taboo topics and see if there were interesting stories there as well. Does that sound accurate, Andrew?

[05:37] Sarah Rajec: Yes, that, that describes our lives. I think the last five years we saw a really, it's like amazing kind of time capsule about the last hundred years of like law and sexuality changing sexual norms. And you could see inventors in real time trying to navigate what would seem to be a persuasive narrative about how a vibrator like could make society better in some way and sort of land at something that would be comfortable for a patent needed to give their stamp of approval to. And we saw these nar the narratives that were used in the 60s and 70s around marriages and frigidity movements. Frigidity like this kind of echoes back to ideas of hysteria, moving into concerns around the HIV epidemic and sexual minorities to sort of a more open kind of market for sexual pleasure.

[06:41] Kim Krawiec: I should tell listeners that I do have links to all the articles that we're discussing today in the show Notes. So if you click on them, you can make your way to the underlying papers. I'm trying to figure out in what order to take some of these questions. I feel like it might be helpful for some listeners to just have a little bit of background about how the patent system and the patent application process works, right, Because I mean, you guys are reading them and using them essentially as texts, right? To sort of tell this really rich and interesting story about these taboo technologies. But I think it would help to have a little bit of background about what the standards are, for example, especially as it relates to these taboo or illicit technologies that you guys are focused on. And I guess I should point out, and you'll I'm sure, talk about this in more detail as we go forward, the illicitness and legality of some of the things you're looking at changed quite a bit over the course of the time period that you're looking at. And so we'll talk about that too. But I think just a little bit of a primer on the patent system, the application, what it is that they need to demonstrate and how that relates, especially in this particular sort of taboo space, would be really helpful.

[08:05] Andrew Gilden: Yeah, absolutely. So the idea of patents is to both sort of reward inventors for what they've, what they've done, but also to induce them to share it with the world. And so in order to get a patent, which is, you know, the exclusive, the, the exclusive right to make, use, sell, offer for sale and import the, the patented invention in order to receive that patent, I should say for a limited time, in order to receive that right, you have to show to the patent examiner that your invention is new, useful and non obvious. And so the new and useful pieces of that Form a lot of what the examination process is. You submit a patent application at the office, the examiner writes back and you have to say sort of here's what all the other things are that are in the field so far, here's why mine is new. And the examiner looks at it and decides if in fact it is. The utility piece of that, the usefulness piece of that is sort of what we think drives the disclosures that are of interest to us. Because someone has to say why is my invention useful? And there's been some development of the doctrine over the years surrounding utility and in particular the beneficial utility or the moral utility of an invention. So in, in an 1817 case, Lowell vs. Lewis, the, the court was looking at, at something that, that had no immoral claims around it or anything. But they were, they were trying to decide if you had to show that your invention was more useful than what was already out there or you just had to show that your invention was useful. And, and the decision said you just have to show that it's useful and that it's not injurious to the well being, good policy or sound morals of society. And so that sort of developed, that was the beginning of the moral utility doctrine where the idea was you, you can't get a patent for something that is injurious to the morals of society. And on the basis of that, patents were denied for, for devices in the gambling world or devices that seem to be deceptive in some way or another. There was a Second Circuit case in 1900 called Rickard that was about, about staining tobacco leaves so that they looked like fancier tobacco leaves than they actually were. And that, that was, that was found not to be patentable because it was in, you know, deceptive and therefore wrong. I found it particularly interesting when reading your article on, on Vice Vice markets, right, that, that a lot of people don't want to invest in tobacco. But here the idea was you have to preserve the tobacco because it's really important that people know when they're getting the good spotted stuff. But in any case, so the, a number of patents were denied for things that were considered to be injurious to morals. And then in a 1999 case at the court of Appeals for the Federal Circuit called Juicy Whip versus Orange Bang, the court reversed that and really lowered the standard, maybe even eviscerated the moral utility standard by recognizing that sometimes deception could itself be valuable. So for example, I mean in that case it had to do with, with a juice dispenser that Looked like it was dispensing juice that already existed and in fact it was mixing it after the fact. But they also discussed things like cubic zirconium. That's deceptive, right? But not necessarily to the person who buys it to other people or, you know, fake leather might be deceptive and still valuable. And so I think the court recognized both. That there could still be value in these things. I mean, you could also think about guns, right? I mean, you could think of guns as immoral. You could also think of them as incredibly valuable inventions that where we want to see innovation. So, so the court recognized that they. That the patent office was not the right agency to determine whether. Whether something was moral or not, particularly given that the patent right is a right to exclude others from doing something, but it's not a right necessarily to market things yourself. And I think that may be one reason why as we look at these, we also see patents on all sorts of things that aren't yet fully socially accepted, aren't yet, you know, legal everywhere or in every, in every way that they might be used, but that do still have value. And so you could get a patent on it and not necessarily be able to use it yet, but you see that the market's moving and you will be able to during the term of the patent.

[12:58] Kim Krawiec: So my sense from reading your paper is that even before the 1999 juicy whip case, which sort of formally got rid of this moral utility concept, it wasn't that big of a constraint for patents, as you just said, that there might be future uses even for things that are currently not permitted or not permitted everywhere. And it looks. And, and you did you. You do have some early patents again of things that may or may not have been legal everywhere at the time. So is that, am I understanding it right, that this has sort of never really, or at least not in recent years, even before 99, been a big constraint?

[13:41] Andrew Gilden: I think that's right. I think, I think it was moving in that direction. And then. And then Juicy Whip sort of made it, made it official. We, we certainly looked at that when we went through our database of patent to say was this an inflection point? What was there a difference before and after? And we didn't really see one. I mean, we, we saw differences over the years and we tracked them, but that didn't appear to be something that was, that was changing anything.

[14:09] Sarah Rajec: Yeah, we tried to obtain, but it's actually very difficult is rejected patents from before, before 2000. They're patent. Patent applications that were denied or not published.

[14:23] Kim Krawiec: So that actually brings up what was going to be my next question, which you've already kind of, you've kind of answered it, which was I wanted to know whether we have access to rejected patents and if so, whether there's any usefulness in comparing sort of the language for those that are right, taboo patents that are rejected versus those that are granted and whether, for example, you see some difference in the way, for example, one of the points that you make in the paper is that the pleasure aspects of some of the taboo technologies are not what most of the, at least the early patent applications focus on. They poke, they focus on medical benefits or wellness benefits or something else. And I, it would be fascinating to know whether rejected ones have a different approach, but it sounds like that's not a comparison that we can really do or at least can't do easily. Is that right?

[15:22] Andrew Gilden: Yeah, unfortunately.

[15:23] Kim Krawiec: Interesting. Okay, so that, so this is helpful. Now that brings me to another question I had as I was reading the paper, which is who is the intended audience for these disclosures? I'm assuming that it is someone other than the patent examiner, especially given what you've told me about sort of the laxness of the standard. It seems like a lot, it seems like way more than they need to do to rehabilitate themselves under this standard. And so I'm wondering, is there a contemplated audience beyond the patent office then? Is it customers, investors? This, this may be true of all patents and not just those in the taboo space.

[16:07] Andrew Gilden: Yeah. So I mean patents are, patents are interesting documents because they are so, so part of what's happening because there's other standards to the novelty and non obviousness the way the patent disclosure is written is it sort of says here's how things have been, here's a problem, here's how my invention solves it. And so in, in that discussion of how things have been done, you sort of, you get some of some of this history of what things have looked like and what it is, what the utility is of the patent. So I think while the utility doesn't matter that much, you have to have some stated utility. But while it's not a significant bar, the other pieces of it mean that we do get a decent narrative there. Now there has been, you know, some academic writing on the value of patents as texts and how they work as texts. Some, some people have written about how they are signals to, to third parties. So Clarissa Long and Clarica say and Jason Rantanen have, have written about the ways that they work as, function as signals to investors and, and signals to other third parties. Greg Riley has talked about how they can be misleading signals to customers when there's patent pending sort of written on things. So, so they're not only for the patent office. A lot of times startup companies are using patents to show that they have protection for their ideas and that their ideas are valuable in order to get the investment that they need to then bring those to market. There's also work by Dan Burke and Jessica Reiman talking about patents as text, a number of, a number of different pieces talking about how patents can be analyzed as texts and how, how we can look at them and plumb them for things. And so this work was, was really is following on that and thinking of ways that we can, we can look at patents as texts and draw out these sort of sociological observations. But they do work. There's the patent examiner, there's so, so there's the inventor and then there's the patent agent who's writing the thing. There's the patent examiner, and then there's investors who might be interested in it. And, and then there's competitors who you want to sort of warn off from, from what it is you're doing and tell, tell them, this is what I own. Although if, if I can just add to that, I would say I think in the pleasure patent context, in drug and psychedelic context, that is definitely more true than in the abortive fashion context where I think the idea is just here is this thing, it can, it can help clear out unwanted tissue from the uterine lining. Right. And, and often I think that that, that is just the very medical version of it. And clear unwanted tissue from the urine lining might have very many different medical meanings. And often it means, you know, post birth to, to make sure there's no infection, and often it means post miscarriage. But, but it could also have an abortive fashion sort of application, and that is not highlighted.

[19:07] Kim Krawiec: Okay, so I think what I wanted to do next is turn to both some of the methods that you use and the three categories that you looked at. Right, the pleasure patents, the. I'm using air quotes here, illicit drugs, since the entire point is to question their illicitness in these patents, documents, and abortion technologies of various sorts. So how, how many patents are we talking about here? I know that with some of them there were large numbers and you read a sample, but I don't remember the, I mean, and you don't have to give the exact numbers. Just ballparking it. I think people might be interested in. There's a lot of activity in this space, I guess is the point I'm trying to make. More than I would have known before reading your paper.

[20:01] Sarah Rajec: Yeah.

[20:01] Andrew Gilden: So rough ballpark. So there was in the cannabis psychedelics space, there's over a thousand issued patents that like expressly deal with one of these quote unquote illicit drugs. Overwhelmingly it's cannabis related and formerly medicinal cannabis related. And then only within the last five or six years where you see anything in the psych in the psychedelic space. And there were in the dozens where it seemed to be.

[20:38] Kim Krawiec: Sarah brought up the Vice Capital article earlier that I did with Andrew Jennings and I'll put a link to that in the show notes as well. But out of many of the taboo investors that we spoke to, psychedelics was their recommendation, by the way. They, they seem to think that was where the money was for the future.

[21:00] Andrew Gilden: Just.

[21:01] Kim Krawiec: And it made me think back to some of those conversations as I read that portion of your paper.

[21:05] Andrew Gilden: Yeah. And I mean, basically what's happening now is that there is so much knowledge in the world about the therapeutic benefits of a wide range of psychedelics and basically once the, the Controlled Substance act was passed in the late 60s, early 70s that the research in that space just kind of stopped. And now we're sort of seeing particularly as the kind of conventional mental health treatments kind of not working as well, that there is a lot of. There's like a racing to both find stuff that's in existence and then figuring out how to kind of harness its potential through, through some sort of pharmaceutical framework. And there's a ton of money pouring into the space and the patents are. Tends to be kind of on the front edge of making sure that, okay, if we get through the fda, if we get through the DEA for, for declassifying, for reclassifying the drug. Okay, we're going to be, we're asking how we're in control in this, in this marketplace.

[22:16] Kim Krawiec: Okay, can we talk then a little bit about. About. You actually found some commonalities across the, your three categories and sort of the way the texts were approached, sort of I guess situating the product or innovation within the social and legal space. One of them was the medicalization of these technologies. Can one or both of you speak about that in the context of, of some of these. In, in the context of your three categories?

[22:52] Andrew Gilden: Do you want to start, Andrew and.

[22:54] Andrew Gilden: I can start with the, the sexual pleasure patents where this idea that this is kind of what started the project was this the thought like, okay, how can you legitimize a vibrator that's being used for pleasure purposes and say, okay, well, there is a history of thinking about how that there is some sort of, you can reframe pleasure as providing some sort of medical benefit. So if you are relaxed, if you are feeling joy, you're going to, you're going to be happier than you were before. And being happier is a medical outcome. So it's a way of saying it's not about enhancing pleasure, it's about making you more able to enjoy life as a quote, unquote, normal person. So instead of going from a baseline of you're okay and now you want to be great, it's going from a, oh, you're, you're, you are less than you could be and kind of bringing up a sense of normal. So it's less disruptive to think you are treating someone with a vibrator who is suffering rather than you are. You are empowering someone to enjoy their body in the world more. So there's one sense that, like, the medical reframing kind of makes the technology less, I would say, less threatening. And also it allows, legally allows you to slot in sexual technologies into some of the, some of the spaces for, let's say, for medical privacy. And we see, we talk about the paper, about how we see these, like, parallels between the arguments that were made in the 70s, the 60s and 70s with pleasure patents pop up again in like, the 90s and 2000s in constitutional litigation. We see that lawyers are using this kind of medical reframing as a way of challenging, let's say, laws that. Laws in Texas that ban the sale of operators. So we sort of see that the kind of strategic value of, kind of softening the blow of like, oh, we have to, we have this uncomfortable new technology and then that gets picked up later down the road. And I think it's slightly maybe different with, with the drug patents because there, there's a, there's a real, there's a real, like, legal distinction that's drawn between recreational and medical. And you want to stay on the medical side in order to long term have any chance of getting the FDA and the DEA on board.

[25:24] Andrew Gilden: Yeah. And I think also when you move into the abortive fashion section of it as well, so it is all described in a medical way. It doesn't feel the same way that it feels in the illicit drug section, where it's, it's sort of thoughtful and strategic. It feels like the, the sort of early patents that don't actually mention abortions at all, but are Four things that have abortive passion properties that a lot of times those are just seen as healthcare and abortion really is seen as part of healthcare. And so some of the deep dive that we did, you know, into looking. And this didn't come out in the patents, but into looking at how abortion care was provided in, you know, like the Middle Ages, for example, it looked like healthcare for women. And one of the big things that, you know, that was meant by these things was to make menses more regular. And because they didn't think of women as pregnant until the quickening, until, you know, around the fifth month when she could feel a baby kick, they didn't know if she was pregnant. They. And, and there were a number of sort of spontaneous miscarriages before that point. They said, you know, it could just be a mole, which I guess is just a mass of skin or something like that. You know, I mean, that's probably a spontaneous miscarriage that we would think of it as that way. Now we. And, and then they wouldn't even think of her as having been pregnant at that time. And so one of the things that, that one of the goals of medicine was to, to get women to have regular periods. And so sometimes these, these, these herbs would be given herbal, you know, concoctions would be given in order to bring on regular menses. And they may have in fact been occasionally aborting early pregnancies without knowing that that was, that that was something that was happening. Although the sort of those manuals from midwives did say, don't, don't take this after the quickening, this could induce an abortion. And so they were aware of that possibility, but that wasn't the intent in the beginning. And I, and I say that, I mean, so none of that's in the patents really, but the patents, they sort of give the same general idea. I mean, the very earliest abortifaction patent that, that we found, and I don't know that our search methods were, were perfect here because it's hard to know terminology that you're searching for, but we tried to be pretty expansive, but was for a form of sage wasatch Salvia from 1870. And there it was also to treat fevers and dysentery, I think. And I mean, I don't know the, the state of medicine was such that, you know, it, it. Maybe it was like the Tylenol of the day, but. But one of the things that it would do would also be to bring on the menses. Now, it didn't say it had Abortive properties. But it was, I, I believe also SAGE was known to Native Americans as potentially having. So. So all of that is just to say I think it's sort of very legitimate and not strategic the way that the medical lens is used for the abortive fashions because it really is seen as part of women's healthcare and part of women's health care is, you know, making sure there aren't post miscarriage infections by clearing out the uterus. That just also happens. Anything that can do that can also clear out the uterus when there is a viable pregnancy.

[28:48] Kim Krawiec: Now one of the things that I did, although it changed during the course of the data set that you looked at, but another sort of parallel between the abortion technologies and the sexual technologies was in some ways, especially in the early years they did seem to be. The usefulness was as a means to facilitate heterosexual often reproductive oriented sex. Right. And, and relations. And that seemed to change. It's not just that there was more of a focus on pleasure over time for, for its own sake, over time. And the patents that you looked at in the, the sexual technologies, the lens. Right. Of who might want assistance with sexual pleasure seemed to broaden over the course of the time period that you were looking at.

[29:44] Andrew Gilden: Absolutely, yeah. I think the early patents that talked about overcoming frigidity in females, those were not about sort of medical treatment of women so that women would be healthier necessarily. That was. Frigidity was one of the bases for divorce with, you know, before no fall divorce took over. And so this was something necessary to keep marriages together basically. So if you could get, you know, that woman functioning the way that she ought to function as a wife, then you could, you could keep the marriage together. So I think those early ones were very much focused on keeping a marriage together and the sort of heterosexual norms of, of having good wives who, who then can, can perform and ultimately have. Have children and all of that. And then we saw, I think that the first shift after that is to, is to safety for young single women. Right. Is that right, Andrew?

[30:42] Andrew Gilden: Yeah, divorce. It was shift from marriage to divorce and safe sex for the, the sort of. There's, it's interesting when it's kind of we see one hand, you see the, oh, social norms change. So we're going to acknowledge new, new communities. On the flip side, like okay, if there, if there are already patents for one vibrator and need to figure out how to market your, your new vibrator or something novel, then oh, this is, look at all these things are changing the world. Look at there, we have this huge new population of, of divorced women. We have openly gay people who need, they're, they're vibrators. So we see that like the sort of social change kind of creates opportunities for innovation and for differentiation from the previous ones. Or like, oh, this vibrator is for sad couples in the 70s, this vibrator is for happy trans couples in the, in the 90s. So and then the thing, the thing we saw across is that once you kind of get into the space of like, okay, we have a pretty saturated field of invention, focusing on pleasure allows you to really differentiate more broadly where if, like, if you're trying to just address a particular health concern, then once you've addressed that health concern, what else innovation is there? So then you see in the cannabis aid space especially, oh, you have flavor and color and sort of means of consuming. And they were like, it becomes much more like pleasure becomes a market appeal. It's interesting to see how pleasure slowly makes its way into certainly the pleasure patents and the drug patents obviously less so for the girlfriend side of things.

[32:45] Andrew Gilden: Yeah. Although the abortive fashion patents, as, you know, similar to the pleasure patents, then there was a real focus on, there is a real focus on fertility and has historically been a focus on, through regular fertility, regular menstruation, preventing infections post miscarriage and then inducing labor at term. Right. And so they say that those are the purposes and there's no reason to believe that they're not the purposes. Right. There's just also these other, other functions.

[33:14] Kim Krawiec: That's interesting. This is a very interesting point that it is the sort of need to show novelty that can, that, that can be the mechanism by which the social change gets incorporated into the patent application and disclosure. Right. Because as you're saying, if, if all the prior applications and patents that were granted were focused on, as you say, the sad married couples from the 70s and now, you know, we've got this whole accepted. Right. New consumer base with perhaps different needs or preferences that we can slot ourselves into serving. So I see how that, how that comes together. One of the things that I found really interesting in your discussion was, and I don't want to put words in your mouth, this is just my takeaway from it as a non patent person. Patent law is kind of like progressive in this odd way, although you document it in the sexual wellness space as well, but in the drug space especially. Right. Well, before some of the broad changes that we've seen relating to cannabis and now later psychedelics, that stuff was reflected in patents much earlier. And so I did get this sense of the patent space as being very forward looking in some ways when it came to what is going to be, you know, the thing that is currently not accepted that might be, although in the case of abortion technologies, it, you know, went the other way and back and forth.

[34:58] Andrew Gilden: Yeah. So I, I, I think it's interesting. We, I think when we presented this, I'm not sure if it, it became one of the headings in, in the earlier paper, but the, the question is sort of is the PTO sex positive? So, so what's, what is, you know, it feels very progressive, but I think for me, the, the way I look at it, and, and I'm interested to hear Andrew's take too from, from all, all of these patents that we've read is really that the, the morality has been taken out of it with the idea that that's not what, you know, the PTO examiners have expertise, they have a lot of expertise and they're assigned patents based on their technology expertise, but they don't necessarily have expertise in, you know, what is moral or what should be sold. And I think, you know, looking back at Lowell v. Lewis, one of, one of the things that was being acknowledged in that early utility doctrine case is that the patent office shouldn't be deciding if some, something is better, some water pump is better than the water pump that was already out there. The market will decide and if it's not better, it will sink into oblivion and nobody will end up using it. And so the Patent office is there for people who think, I have an idea and I think this is worth getting a patent on because I think it will have market value within the next 20 years. Now the question of whether it'll be approved for sale and legal is, is a tricky one, right? There's a gamble in there for, for people to make. So I think what we see when we see the jump in patents in these different areas is that people are taking that gamble and they think there is excitement in the, in this space, in the cannabis space, there's excitement in the psychedelic space and whether the medical lens that we've talked about is the only one driving that or, or is the path that they think the legality is going to take, right? As people see, hey, mbmd, MDMA helps treat PTSD or, or something like that, right? They're, they're willing to take that gamble and the PTO is sort of there to check the things they need to check, but otherwise the, the investment and all of that is really on the inventor.

[37:15] Andrew Gilden: Yeah. A few things want to add that is like I share the sort of observation that like a lot of what's going on here is the like libertarian ethos of the space. That the like juicy. I think jup talks about this as well. That like if there's a market that thinks that this invention is useful, then yeah. And you meet all the, you meet all the technical requirements, go at it. And I think that's sort of, I mean all of IP as it is. Like giving private property rights will spur invention in the marketplace. We'll figure out which ones are worth it. So that sort of. And then I think another I think brand here is this perception that the PTO is just a bunch of science nerds and not a political actor within our government and gives it a lot of leeway to stay out, stay under the radar of any of these like significant cultural debates. One other thing is that your patent law, I mean if you obtain a patent, you'll get protection basically 20 years from the time of, of filing. That's a mo. Oversimplifying five bit. So looking 20 years in the future, you kind of have to have a mindset of like a kind of a, in some ways a kind of a utopian or sort of idealistic sense of like, okay, the world is going to look a certain way in 20 years. We'll have, you know, couples really experimenting with gender fluidity. And here we need to give, here is like new sort of like piece of clothing that will facilitate, facilitate that. And so I think it kind of pushes you to have business people to be a little bit on the rosy side about the future, which I think can align with the sense that like what's come out of this is something quite progressive. But at the same time it's still coming the panel side from a libertarian notion of a libertarian commitment and libertarianism and progressivism, you know, can intersect but also diverge. And there's certainly some examples and we showed the paper where they're. The outcome may not be the most progressive thing in the world.

[39:30] Kim Krawiec: So this is fascinating and it brought me to kind of one of the big picture types of questions that I had from your paper. And I suspect your answer is going to be, yeah, we can't answer that based on the information that we have, but I would be interested in your thoughts anyway, which is clearly there is, I don't want to call it a parallel because as we just discussed, the patent space seems to be ahead of the curve. Right. In terms of what Sort of the changes in, in both laws and other areas and in social norms that come later. But I guess the, what, I guess one question I had for you is what did you think was the relationship, if any, between those two things? Right. I mean, one possibility is that patent filings have some normalization effect. Like they're, they're actually affecting social norms which then affect other laws. Right. So that we see these patents that are kind of normalizing the concept of there being useful purposes for say, cannabis, and then that changes the way people think about cannabis and we change the law. But there are, there are other possibilities as well. Right. One, and I think you sort of nod to this in the paper is that it's really a lot easier and lower cost to get a patent on something than it is to go around, you know, lobbying 50 states to change their laws, et cetera. And it could just be that, I don't know, market preferences are ahead of median voter preferences. I mean, there could, there, there could be a lot of different reasons for it. And I wondered whether you guys had come away, I don't know, with the type of gut instincts on it that, you know, you might not think made their way into the paper.

[41:20] Andrew Gilden: Yeah, so, so I am skeptical of making any claim that the patents are driving society to be more open to things, but I do think that they're sort of previewing where things might go. So when you write a patent, you want to claim every, you want to make clear that you are thinking as broadly as possible so that later, if you're bringing an infringement case against someone else, if it actually does go forward and people are using this and it's valuable and you bring an infringement claim against someone else, you want to be able to say, yes, we thought of using this in all of these ways, and that's clear from my patent document. And so I think there is an incentive to be as broad as possible. And so in that sense there's an incentive to be sort of forward looking and progressive in the use in the claiming that goes on in the patent. But I'm not sure. I don't think that it's driving things. And maybe some of my hesitation as we looked at these three different areas is from the abortive fashion piece, which really, it doesn't fit naturally. Right. And we've talked about a lot sort of what we were looking at and whether it made sense to include this or if that was a different paper or what. Because we really are looking at two areas in which we're talking about sort of pleasure and autonomy and one where we're really just talking about autonomy but not necessarily pleasure and it doesn't quite fit. And then also the legal landscape has changed there in a way that it hasn't changed in the other two areas.

[43:02] Kim Krawiec: And changed in the, changed in the opposite direction. Right. Of what right? The others follow a particular liberalization trajectory that sort of is foreshadowed perhaps by the patent space. And then the abortion space goes and completely the opposite direction.

[43:22] Andrew Gilden: Yeah, although, who knows? I mean, we, you know, history, history isn't finished with us yet. So, so it's not clear. You know, there's been talk of reviving the use of the Comstock laws against abortive fashions, but those were also used against the sexual pleasure toys early on and to, to stop the distribution of them. And they've been talked about in the birth control space as well, potentially once. Once if, if it's successfully used against Board of fashion. So, you know, there is a possibility for any of these technologies that are in this liminal space and moving towards acceptance that, that that could be reversed. And so I think, you know, it's interesting looking at the abortive fashion space because it seems like there, there were these technologies. There are these technologies that are, they're useful in these medical situations and in various ways of treating women who, who are going through or, or who are menstruating or going through pregnancies or post postpartum and all of that. And then, and then one of those reasons sort of comes out more, you know, in the years before Roe as we see states legalizing things, and then the years after Roe as well. But those are discussed with time limits on them because that's, that's how the, how the case sort of frames things and is interpreted by, by later courts as well. And then I don't know, I don't know if what we'll see is that that gets, gets sort of dropped from the descriptions or if it just made clear that it is one possible application, but that the other applications also still exist. So I do think, I mean, that's one area where it would be interesting to follow what happens in the patent applications, given the landscape, if the landscape holds, which we don't know. And certainly the reversal of row with Dobbs doesn't tell states that they have to outlaw abortion either. So we can imagine that we will still keep seeing patents in this area. But it is one area that's sort of interesting to watch because I think if we see some sort of reaction in the patent space to, to what's going on legislatively then then that might be interesting and might tell us something about the causal direction of things.

[45:35] Andrew Gilden: Yeah, like my inclination is that like what where the patents can actually make changes happen directly is by basically bringing in fusion of cash into fringe markets and potentially into subcultures that otherwise. So in some ways that you basically are investing in either the fringes or like the grassroots at the bottom level. So that you can have like, you know, if there is like psychedelic subcultures in San Francisco that are, that are getting increasingly invested in, that's going to like from the kind of bottom up change and impact social norms. But sometimes that that sort of investment and the social norms bubbling up is going to be smacked down by more, you know, express power by courts and governments who are contrast that. So it's quite possible that the changes that we sort of see around even about, about abortion, whether the norm, those rooms may not have actually changed despite the change in the law because the, the change agents are kind of operating against each other. And actually there's something that happened last couple weeks that, on the sexual device side that I believe that the FDA is sending out warning letters to sellers of sexual devices for basically selling like unlabeled medical devices and sort of using that medicalization concept as a way to stop the sale of sex stories in online in market. So there is some like pressure against that trend in the sexual context as well. But I don't think that means that attitudes are changing back. It just means that social norms and law are just increasing tension.

[47:42] Kim Krawiec: Yeah, that's an interesting anecdote because one of the things that I found very interesting in your paper, it's something that I have noticed as well, is that the medicalization thing can be a little bit of a double edged sword in the ways that you're talking about here, but also that you document, I think in the paper, which is that, I mean, I feel like we see this a little bit in the cannabis space where you know, initially the sort of language of medicine and of helping people overcome, you know, particular health problems is helpful. But when people push that beyond what the evidence may bear, then there can be pushback. Right. Whereas if we had just started perhaps from a pleasure or wellness, you know, broadly defined perspective before that we wouldn't have that. So I don't know, I thought about that several times over the course of this, that sort of the medicalization aspect of it. And then for reasons that you talk about, I have to say abortion technologies because I can't pronounce abortion properly, which is that the medicalization there has perhaps changed the way we approach this and regulate it. Andrew's last comment just made me think back to that, to that line in the paper about the pros and cons of the medical narrative.

[49:08] Andrew Gilden: Yeah, and there's been really interesting work about this like medication kind of more broadly, mostly outside of the patent space. I'm thinking about like Craig Conant's work or Ruth Coker's work on over medicalization where we see that it is a very appealing kind of lawyerly narrative to sort of invoke someone out there in need of treatment and help and then they'll, and that when I kind of frame whatever it is, whatever the right or technology as like, as, as, as treatment and as therapy, it creates a, it creates, it creates sympathy. But also when you have someone who, when you create sympathy, you also sort of welcome some paternalism as well. So, and that certainly has happened in, in the, the way that kind of writes recognize the row got kind of flipped on their head or being like, okay, you know, if you need this medicine, that means you also need to also need to be regulated.

[50:05] Kim Krawiec: Well, that's all I have. Do either of you guys have any parting thoughts you want to make sure you leave listeners with before we sign off?

[50:13] Andrew Gilden: Well, I hope, I mean, I think, you know, there, there are others writing about sort of patents as documents and signals and things like that. And I hope that this work sort of offers up patents as a good way to look at social changes and social norms and maybe also sort of connects it to, to some of the literatures about, about taboo markets and because patents really are sort of market devices for investment and all of that. So, so, so it's been, it's been really fun talking to you about it and I hope, I hope any listeners are, are interested in diving into all the, all the fun areas of patents that exist.

[50:58] Andrew Gilden: Yeah, I think I'll, I'll just add that I think it's when for me, for me, I guess someone who hasn't actually done a lot of patent focused work in the past thinking about how introducing new technologies into the marketplace, into our society really ends up being very closely connected to questions around social justice, equality, the rights for healthcare, instead of bringing technology and innovation into the discussion, I think has been really illuminating for someone who is often focused on questions around law and culture. So I think bringing technology, law and culture and connects with each other really helps paint a much richer picture about all the different dynamics of play.

[51:42] Kim Krawiec: Well, thank you, both of you. This has was fascinating. I, I love the paper. I encourage all listeners who have not yet read the paper to, to go read it. It's. You're, you're going to enjoy it and learn a lot, as I did.