Mrs. Aronson’s Patent: Gender, Family, and Domestic Innovation in Postwar America

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I. Introduction

The title of this Article is deliberately misleading in two major respects. First, there is no “Mrs. Aronson,” at least not in this story. When Chief Justice Burger wrote for a unanimous Supreme Court in 1979 that “the petitioner, Mrs. Jane Aronson, filed an application . . . for a patent on a new form of keyholder,” he referred to the petitioner before him as Mrs. Aronson, even though her surname at the time was Hossfeld.^[1] And at the time she filed her patent application a quarter century earlier, she was married to Norbert Leopoldi and used his surname, even though, for reasons discussed below, she filed the application under her birth name Aronson.^[2] The second falsehood buried in the title of this Article concerns Jane Aronson’s patent, which also never existed. As students of patent law know, Jane Aronson’s patent application was ultimately rejected by the Patent Office and the Patent Board of Appeals.^[3] She never obtained a patent on her novel keyholder, though, as the narrative that follows will show, she may have been entitled to one.

This Article unearths the curious and hitherto unexplored history of the case that concerned Jane Aronson’s unsuccessful patent application, Aronson v. Quick Point Pencil Co. Though the case occupies an important niche in the jurisprudence of patent misuse and federal–state preemption, its history illuminates broader issues surrounding innovation policy that are increasingly relevant today. First, Aronson tells a story of domestic innovation—common sense ingenuity that bubbles up far from the confines of university laboratories and Silicon Valley startups. In this respect, the story is an inspirational one: anyone with a bright idea and a little bit of gumption can become an inventor. Even better, the legal system is there to help everyday inventors transact on an equal footing with much larger corporate entities. As such, Aronson can be viewed as a case study in the growing literature of user innovation and citizen science in which nonprofessional inventors can make meaningful contributions to technological progress.^[4]

But Aronson also has a less congenial side: it highlights the very real gender disparities that have burdened, and continue to burden, the innovation economy. This account thus joins other recent expositions of the hurdles faced by mid-twentieth century women in America in the sciences and engineering.^[5] Like these prior accounts, Aronson shows that women inventors were at a serious disadvantage at obtaining patents when compared to their male counterparts—not only when dealing with the Patent Office, but also within the social structures imposed by their familial relationships. But Jane Aronson,^[6] unlike the women featured in these better-known histories, did not advance rocket dynamics, radio communication, computer programming or naval science. Her innovation was a simple and inexpensive household article that is still widely in use today: a keyring designed not to break a woman’s fingernails. Her patent was never granted, but her ex-husband’s, claiming something similar, was.

Based on personal interviews and extensive archival research, this Article explores both the history and implications of Aronson v. Quick Point Pencil Co.^[7] In doing so, it illuminates both the practice of domestic innovation in postwar America and the challenges faced by women inventors in that setting. As such, it offers insight that may support efforts aimed at addressing these persistent issues today.

The remainder of this Article proceeds as follows: Part II describes the facts and personalities that appear in Aronson v. Quick Point Pencil Co., offering substantial original background beyond what is reported in the case decisions. Part III focuses on the keyring invention at the center of the case, including the history and manufacture of keyrings, generally, and the particular designs at issue in the case. Part III goes on to describe the patent application filed by Jane Aronson, the business transactions relating to the application and the litigation that ensued. Part IV then turns to the lessons that Aronson teaches about domestic innovation and the differing incentives that patents offer for innovation and the commercialization of innovations. Part V addresses issues of gender in the patent system, both historically and as reflected in Aronson. Part VI then reconsiders the conflicting narratives of Aronson, seeking to illuminate both the truth behind the case as well as the larger truths toward which it gestures. The Article concludes with thoughts regarding the need for continuing efforts to address bias in the patent system.

II. The Facts and the Dispute

A. Aronson v. Quick Point Pencil Co.: The Case

Today, Aronson v. Quick Point Pencil Co. is a staple of intellectual property law casebooks and treatises.^[8] Following its release, the case was the subject of numerous law review articles and commentaries.^[9] It is often discussed in connection with the doctrines of patent misuse—the principle that a patent owner may not seek to expand the scope of its exclusive rights beyond those granted—and federal patent law preemption of state contract law.^[10] Patent misuse renders a patent unenforceable.^[11] This doctrine and its drastic remedy are often invoked when a patent holder has sought to collect royalties after the expiration of its patent, as in the seminal case Brulotte v. Thys, decided more than a decade before Aronson.^[12] In Aronson, the facts present an interesting twist on this standard scenario. In the case, the patent holder, Jane, entered into a licensing agreement whereby Quick Point agreed to pay her a royalty of 5% of its net sales of keyrings made according to the design of her then-pending patent application. According to the agreement, if a patent did not issue within five years, the royalty rate would drop to 2.5%.^[13]

After five years, no patent was issued, and Quick Point reduced its royalties accordingly.^[14] Quick Point paid royalties to Jane at the reduced rate for the next fourteen years, ultimately paying her more than $200,000. But in 1975, Quick Point appears to have reconsidered and sought a judicial declaration that the contract was no longer enforceable.^[15] Jane, or more likely her ex-husband, did not accept the termination of payments and sued Quick Point for breach of contract.^[16] Quick Point argued, and the court of appeals agreed, that even if Jane had received her patent, Quick Point would no longer have to pay a royalty once it had expired, so surely with no patent at all, its payment obligation must also cease.^[17]

Despite being represented by the eminent Erwin Griswold, former Solicitor General of the United States and Dean of Harvard Law School, Quick Point lost at the Supreme Court.^[18] In an opinion authored by Chief Justice Burger, the Court held that, without an issued patent, patent law and the patent misuse doctrine played no part in the case. A contract is a contract, and Quick Point had legitimately, if imprudently, agreed to pay 2.5% indefinitely.^[19] This is where the narrative of Aronson v. Quick Point Pencil Co. usually ends. But, as is so often the case, there is more to the story.

B. Jane Aronson

Jane Doris Aronson was born on April 15, 1926, in Chicago, Illinois to Sidney Mortimer Aronson, a native of Chicago, and Tugela Prins, originally of Johannesburg, South Africa.^[20] Sidney’s father, Julius W. Aronson, was a native of New York, but had moved his family to Chicago by 1910.^[21] By the time of Jane’s birth, the Aronsons, who owned a printing business, were financially secure, if not wealthy.^[22] They were prominent members of the North Chicago Jewish community and played a role in supporting the historically significant Temple Sholom on Lake Shore Drive.^[23]

Jane graduated from Chicago’s Lake View High School in 1943 at the age of seventeen. According to her yearbook profile, Jane participated, among other things, in drama, public speaking, the English and French clubs, the yearbook literary staff, and the Red Cross.^[24] She also had an interest in, and an aptitude for, the visual arts,^[25] and after high school, Jane attended classes at the Art Institute of Chicago. Yet, she never completed a degree in art.^[26] In 1949, at the age of twenty-three, Jane married an Austrian immigrant, Norbert Leopoldi, who was then thirty-seven years old.^[27]

C. Norbert Leopoldi

Norbert Leopoldi’s grandfather, Leopold Kohn, was a pianist who accompanied singers in Vienna coffee houses under the stage name “Leopoldi,” which he adopted to “conceal[] the unmistakable Jewishness of the name ‘Kohn.’”^[28] Leopold’s son Hermann, who was also a musician, officially changed his surname from Kohn to Leopoldi in 1911.^[29] Norbert was born the next year with the surname Leopoldi.^[30]

Hermann Leopoldi enjoyed a successful musical career in Vienna as a pianist, composer, and cabaret owner.^[31] As such, Norbert was raised in relative comfort within the affluent Viennese Jewish community. He was a precocious boy with an inquisitive mind who enjoyed playing chess and tinkering with household items.^[32] But the situation for Jews in Vienna became increasingly precarious during the late 1920s, causing Norbert’s maternal grandparents, Hugo and Amalie Kraus, to emigrate to the United States in 1930.^[33] Norbert, then eighteen, accompanied them, traveling third class aboard the S.S. George Washington and getting his first view of America.^[34] Norbert soon returned to Vienna, however, where he accompanied his father on musical tours and engagements.^[35]

But by 1938, the local situation had become perilous. In May, Norbert, then twenty-six, left Vienna for Rotterdam and bought passage for New York, listing as his occupation “dramaturge.”^[36] He arrived in New York in July and took up residence with his grandparents, who were by then American citizens operating a hardware store in Brooklyn.^[37]

With the entry of the United States into World War II, Norbert enlisted in the U.S. Army and then the Merchant Marine,^[38] where his natural intuition for mechanical devices landed him in the engine room of the cargo ship S.S. Stephen W. Kearny.^[39] During one Atlantic crossing, Norbert is reported to have rigged an electric drill to the ship cook’s meat grinder, thereby automating the process and earning the cook’s gratitude and the choicest rations of the voyage.^[40] After his tour of duty, Norbert moved to Chicago. There, through common acquaintances in the Jewish community, he met Jane Aronson and the two were married in 1949.^[41]

At first, the newlyweds lived with Jane’s parents and older brother.^[42] In the 1950 U.S. Census, Norbert stated his occupation as “salesman” for an advertising agency, the same agency where Jane worked as a typist.^[43] The couple’s engagement with the advertising industry is discussed in the next section, after a brief historical overview of the industry as it existed at the time.

D. The Specialty Advertising Industry and Quick Point Pencil

During the last decades of the late nineteenth century, American firms discovered that they could effectively promote their businesses by giving prospective customers inexpensive products known as “premiums” or “specialties” (better-known in today’s parlance as “swag”) that bore their logos or other identifying features.^[44] Specialty advertising firms design and sell premiums in bulk to clients such as auto dealerships, home contractors, real estate agents, medical practices, and a wide range of retail businesses. These businesses in turn give these premiums away at retail outlets, sporting events, festivals and in medical waiting rooms.^[45]

The early twentieth century marketing entrepreneur Henry S. Bunting cataloged examples of premiums ranging from the anodyne (e.g., calendars, baseball caps, and ashtrays) to the bizarre (e.g., pickle-shaped watch fobs, pigskin purses, and bars of soap).^[46] Today, premiums including water bottles, thermos cups, notebooks, highlighters, and (still) baseball caps are favorite giveaways of law firms and universities, not to mention bar prep courses and legal database vendors.

Wendy Woloson explores the commercial reasoning behind specialty advertising, describing it as “an important and powerful form of commercial currency, helping businesses establish seemingly intimate relationships with their customers as they curried favor, cemented brand loyalty, and made consumers feel appreciated and affirmed.”^[47] Woloson reports that by the 1950s American firms were giving away specialty goods valued at between $500 million and $700 million per year.^[48]

One such specialty firm was the Quick Point Pencil Company of St. Louis, Missouri. Quick Point’s founder, Gerald August Goessling (1900–1968) was a “wild eyed” serial entrepreneur who began his career manufacturing handheld cigarette lighters under the name Missouri Gas Lighter Company.^[49] He soon expanded his business to other companies including Missouri Knife Co. and St. Louis Plastic Molding.^[50]

Goessling founded the Quick Point Pencil Company in 1928 to manufacture mechanical pencils using celluloid, a new plastic material that was inexpensive and versatile, but also inflammable.^[52] Quick Point’s first factory, located in the 500 block of Olive Street in St. Louis, reportedly caught fire once per week, and stayed in business only because it was conveniently located next to a fire station.^[53] Despite these setbacks, Quick Point thrived, and during the 1930s, Goessling began to obtain patents relating to mechanical pencil design and manufacture,^[54] as well as methods and equipment for printing on cylindrical tubes.^[55] This last set of innovations enabled Quick Point effectively to imprint corporate names, logos, and slogans on plastic mechanical pencils and thereby to establish itself as a leading specialty advertising firm.^[56]

Goessling soon expanded Quick Point’s business to include a wide range of specialty advertising products including combs, shot glasses, golf balls, mugs, flashlights, and key holders, all emblazoned with client names, logos, and slogans.^[57] Key holders were particularly interesting to Goessling, who obtained a patent in 1935 for a novel “key container,” the outer surface of which could be printed with advertising copy.^[58]

E. Americans in Paris

Before the bulk of the world’s merchandise could be viewed online, those wishing to explore the latest product offerings and designs from a range of vendors attended trade shows. These large-scale events brought together hundreds or thousands of vendors and potential customers.^[59] During the mid-twentieth century, one of the largest and most prominent of these annual events was the Foire de Paris, commonly known as the Paris Fair.^[60] The Paris Fair, which has been held most years since 1904, occupies over 100 acres of display space in ten buildings at the Porte de Versailles outside of Paris.^[61] In 1954, the Fair hosted more than 12,500 exhibitions and attracted approximately four million attendees from around the world.^[62]

After the War, Norbert Leopoldi worked as an independent sales representative for specialty advertising firms, offering to create a wide range of premiums for consumer-facing businesses.^[63] Around 1954, Norbert formed his own specialty advertising firm, Leopoldi Advertising Gift Specialties, for which he registered a federal trademark.^[64]

As part of his business, Norbert attended trade shows to seek inexpensive products that could readily be imprinted with businesses’ brands and logos.^[65] Many of these shows were in Europe, and Norbert’s family recalls his trips to cities such as Frankfurt, Hannover, Basel, and Vienna for this purpose.^[66]

In 1955, Norbert brought Jane on one of these trips; it was likely her first trip abroad. He was forty-three and she, traveling under the name Jane Leopoldi, was twenty-nine.^[67] Among other things, they brought hard-to-find consumer products such as women’s hosiery to Norbert’s relatives in Austria.^[68] They also visited Paris, where it is likely that they attended the Paris Fair, held from May 14–30 of that year.^[69]

On May 11, 1955, Jane (probably with Norbert’s assistance, as she did not speak German) filed a German patent application for a novel sponge design.^[70] The claimed sponge could be tightly compressed and wrapped in water-soluble plastic. Upon immersion, the plastic wrapper would dissolve and the sponge would grow to its full size. In both the compressed and expanded forms, the sponge could be printed with advertising text and images, and easily shipped in compressed form as a promotional item.^[71] The patent application listed Jane Leopoldi as its inventor.^[72]

The couple departed France in August, traveling first class aboard the S/S Liberte, and arriving in New York less than one week later.^[73] With the sponge patent application awaiting review in Germany, one can imagine the couple’s conversation, perhaps as Jane filed a broken fingernail, turning to the goods that they viewed at the fair and the topic of keyrings.

III. The Invention

A. The Humble Keyring

Locks and keys have been known since the advent of metalworking and have been discovered among the remains of ancient civilizations from Egypt to Mesopotamia to Rome.^[74] As metal keys increased in popularity, the need to hold them together in a safe and reliable manner gave rise to the keychain or keyring. The first keyrings appear to have been simple bands or cords used to hold keys together while keeping them easily accessible for use.^[75] Figure 4 shows an example of this practical device, with keys still attached, found at a Gallo–Roman archeological site.

By the Middle Ages, keyrings had become common accessories of household life, at least among those who owned something worth locking up, whether coin, jewelry, merchandise, or prisoners.^[77] In the nineteenth century, keyrings expanded beyond their purely utilitarian functions to become decorative objects. Inexpensive and easily manufactured, they were sold as souvenirs, along with other trinkets such as statuettes, magnets, and miniature spoons, to the growing numbers of travelers visiting foreign locales.^[78] The rise of plastics manufacturing after World War II led to an explosion in the production of cheap consumer goods, and by the 1950s, large numbers of plastic products, many manufactured in Japan, were available on the American market.^[79] The souvenir keyring was a major beneficiary of improved plastics technology, making it, according to some sources, one of the most popular tourist souvenirs in the world.^[80] An iconic example of the souvenir keyring includes a fob depicting the Eiffel Tower.^[81]

A keyring, also commonly known as a keychain, typically consists of three principal parts: the ring or clasp, the chain, and the fob or trinket.^[83] The ring holds the keys. It is typically a stiff metal wire that is bent into a circular loop known as a split ring or cotter ring. In this configuration, the ends of the loop overlap so that one end must be pried a few millimeters away from the other to allow the aperture of a key to slide between the overlapping segments of the ring until it reaches a point where the segments snap shut and thereby secure the key on the ring.^[84] This basic design can be observed even in ancient examples of bronze keyrings.^[85] Today, the ring is usually made of a rigid, durable metal such as electroplated iron or nickel, though sterling silver and other metals may also be used.^[86]

The fob or trinket is an item, other than a key, that is attached to the keyring. Fobs can be purely ornamental, like the Eiffel Tower shown in Figure 5, they can embody a corporate logo or advertisement, or they can be useful implements such as bottle openers, whistles or memory sticks. Fobs can be made from a wide range of materials including plastic, metal, wood, and leather.^[87] The chain simply connects the fob to the ring. It is usually made of small, interlocked metal links, though many other materials and configurations are possible.^[88] The only essential element of a keyring is the ring itself, which is necessary to hold the keys together. The fob and chain, while found in many keyrings, are not essential to the function of the device and serve a largely ornamental purpose (though some fobs can be useful items, as noted above).^[89]

Though the basic design of the keyring—a closed loop for keeping keys together—has existed since antiquity, innumerable improvements to this basic design have been developed over the years. Many of these have been patented. The Appendix lists patents covering keyring designs and improvements that were issued in the United States prior to the end of 1955, the year in which Jane filed her own keyring patent application.^[90]

As shown in the Appendix, a slightly improved version of the basic annular ring design with overlapping ends dates to 1909. Many of the other improvements to the ring design include increasingly complex mechanisms for opening and closing the metallic clasp without the need to pry apart its overlapping ends.^[91] Based on this multiplicity of designs, it seems clear that a consistent desire of keyring users was a ring that could be opened easily and without damage to one’s fingers or, more importantly, fingernails. While mechanical opening and closing devices could achieve this purpose, they are both relatively expensive (compared to a simple annular ring) and prone to breakage. The ideal keyring would be (a) inexpensively cast from a single piece of metal; (b) capable of securing a reasonable number of keys; and (c) amenable to the addition or removal of keys without undue physical inconvenience, effort or injury.

B. The Aronson Keyring

We do not know when Jane and Norbert began to think about keyrings, but family lore tells us that it was in Paris that they arrived at the novel design^[92] that I will refer to as the Aronson keyring. The design satisfied each of the criteria noted above. It encompassed only two pieces: a springy metallic wire bent so that its ends would fit snugly into a groove in a plastic disc or medallion. Some force is required to remove the wire from the disc, so that when the wire and disc are coupled, any keys threaded through the wire are secured.^[93]

Because the wire and medallion can be pulled apart with minimal force, and the space between the ends of the wire is relatively large (about one centimeter), the operation of the keyring is far easier and less damaging to the user than the traditional overlapping ring design. Likewise, because the Aronson keyring does not include mechanical hinges or other moving parts, it is less likely to fail, and more inexpensive, than hinged keyrings.

Moreover, the plastic medallion in the Aronson keyring can either be imprinted directly with advertising copy, or it can include a transparent plastic cover under which a printed (paper) advertisement or logo can be inserted.^[95]

There are conflicting accounts of who “invented” this new keyring. A member of Jane’s family says that Jane, a naturally curious and creative person, invented the fingernail-friendly device, which she also thought would help users with arthritis (perhaps thinking of one of her own elderly relatives).^[97] Members of Norbert’s family, however, recall that he was the one who improved on the design of a keyring that Jane found in Paris.^[98] The truth is likely some blend of these accounts. Jane may have been inspired by the many product offerings at the Paris Fair, including scads of souvenir keyrings, each more difficult than the last to pry apart, while Norbert may have seen the potential to include specialty advertising on keyrings made according to a new design.

C. The Aronson Patent Application

Whoever actually conceived the new keyring idea, Jane and Norbert got to work shortly after returning to the United States from France in early September 1955.^[99] Norbert regularly worked with a tool maker who prototyped new product designs for him.^[100] With a prototype in hand, they presumably engaged a patent attorney^[101] who filed a patent application claiming the Aronson keyring on October 25, 1955.^[102] Jane was twenty-nine years old.^[103]

The application listed Jane as the sole inventor.^[104] There are several possible reasons that the application reflects only Jane’s inventorship. First, she may actually have been the sole inventor of the keyring design, and Norbert, being an honorable man, insisted that she be listed as the inventor. It is also possible that the patent attorney, determining that Jane invented the keyring, appropriately listed her as the sole inventor. Another possibility is that Jane and Norbert jointly contributed to the invention, yet only Jane was listed as the inventor for strategic reasons.

Some of Norbert’s surviving family members recall that Norbert wished Jane to be listed as the sole inventor of the keyring to shield any resulting patent from creditors in case he was ever required to file for bankruptcy.^[105] Fear of bankruptcy would not have been out of character for the proprietor of a startup advertising business in Chicago, or for a person with a taste for wagering, demonstrated by Norbert’s love of playing chess for money (gamblers being notorious credit risks). The asset concealment theory is also supported by the fact that the keyring application uses Jane’s “maiden” name, Aronson, rather than her married name, Leopoldi (which she used on her German sponge patent application just a few months earlier).^[106] If Norbert was trying to shield assets from the reach (and knowledge) of creditors, then filing under Jane’s birth name would have been logical,^[107] though reflecting somewhat questionable ethical standards.

This being said, as time went on Norbert seemingly became more comfortable listing himself as the inventor on patent applications that he filed. During his lifetime, Norbert was identified as an inventor on fifty-nine issued U.S. patents.^[108] Several of these also identified co-inventors such as William Heinrich, a prototyping engineer with whom Norbert worked regularly.^[109] One 1992 patent for a belt design lists Norbert and his second wife, Regine, as co-inventors.^[110] Yet Norbert alone is listed as the sole inventor on forty-four different patents, including one (for a squeegee with attached fluid bottle) that was filed in 1957, less than two years after the keyring application. Most of these patents were assigned to Norbert or one of his own companies (including one named “Nordette Inc.,” the assignee of the squeegee patent).^[111]

All of this means that if Norbert had been pursuing a strategy of asset concealment in 1955, he abandoned that strategy by 1957, if not earlier. The implication of this is simply that Jane may actually have been the inventor of the keyring invention, though her reason for listing her surname as Aronson rather than Leopoldi remains a mystery.

Today, the Aronson patent application is, as far as the Author can determine, lost.^[112] What we know about the application is largely based on the factual recitations set out in the judicial opinions in the royalty case litigated during the late 1970s. These facts are sparse:

• Application No. 542,677^[113] was filed on October 25, 1955, listing Jane Aronson as the inventor;^[114]

• The Patent Office rejected the application some time in 1956;^[115]

• The application was amended and again rejected in 1957;^[116]

• An appeal was filed with the Board of Patent Appeals in 1958;^[117]

• On September 27, 1961, the Board issued a final rejection on the simple ground that “the keyholder was not patentable.”^[118]

• No further appeal was made and the application was thus abandoned.^[119]

D. License to Quick Point

In June 1956, eight months after the keyring patent application was filed, Norbert and Jane traveled to St. Louis to meet with Gerald Goessling, the President and founder of Quick Point Pencil. Given Norbert’s work in specialty advertising and Quick Point’s nearly thirty-year track record in the field, it is likely that Norbert was already acquainted with Goessling, or at least with his company. Norbert introduced himself to Goessling as Jane’s agent.^[120]

The goal of the meeting was to negotiate a licensing agreement whereby Jane would authorize Quick Point to manufacture keyrings covered by her patent application in exchange for a royalty on Quick Point’s sales of those keyrings.^[121] Jane and Norbert disclosed the patent application^[122] and a set of prototypes for the keyrings to Goessling^[123] “under confidence.”^[124] Goessling, who had experimented with a novel key holder design twenty years earlier,^[125] was impressed and saw the potential of the new design.

On June 26, Goessling sent a two-page letter agreement to Norbert and Jane setting forth the terms of a proposed deal. It provided that:

• Quick Point would have “the exclusive right to make and sell keyholders of the type shown” in the patent application;

• Quick Point would start to manufacture keyrings within 60 days;

• Quick Point would make an up-front advance royalty payment of $750;

• Royalties would thereafter be payable at the rate of 5% of Quick Point’s selling price of all licensed keyrings;

• If Quick Point did not sell at least one million units by December 31, 1957, Jane would have the right to terminate its exclusivity;

• If the volume of sales did not meet Quick Point’s expectations, Quick Point could terminate the agreement upon written notice.^[126]

Norbert and Goessling discussed the agreement on June 27 by telephone, whereupon Norbert proposed an additional term: if the patent application was not allowed within five years, then Quick Point would thereafter pay Jane 2.5% of its keyring sales, “as long as [Quick Point continues] to sell same.”^[127] This modification was prescient, as it contemplated the legal landscape absent an issued patent. Though the law in this respect was somewhat unclear in 1961 (it still being three years before the Supreme Court’s patent misuse decision in Brulotte v. Thys Co.^[128]), it must have been apparent to Norbert (or his attorney) that the rejection of Jane’s patent application would put an end to the royalties payable by Quick Point unless some provision were made to continue them, albeit at a lower rate. Goessling agreed to the proposal by telephone. He and Jane subsequently exchanged countersigned copies of the agreement and amendment.

By July 1956, Quick Point had begun to test materials for production of the keyring. Goessling corresponded with Norbert and Jane about the details, such as whether the “spring[]” component should be composed of nickel- or cadmium-plated steel.^[130] Production and sales began soon thereafter.^[131]

From July 1956 to March 1957, its first months of production, Quick Point earned approximately $34,000 on sales of specialty-branded keyrings, paying Jane a 5% royalty of $1,718. That royalty increased to $4,000, then nearly $8,000 by 1961.^[132]

In January 1959, the parties entered into a supplemental agreement with respect to keyrings combined with rulers, watches, and other items.^[133] Because the patent application did not cover these other items, which themselves were costly to produce, Quick Point negotiated a flat rate royalty of $0.0075 (three-quarters of a cent) per unit.^[134]

Throughout this period, the Aronson patent application received various rejections from the Patent Office.^[135]

E. Another Application

The year 1961 was a watershed in this narrative. First, perhaps anticipating the ultimate rejection of Jane’s patent application, on April 4 Norbert filed a new application with the Patent Office listing himself as inventor.^[136] The application claims a keyring design that differs from the “ShowRing” design produced and sold by Quick Point (and presumably based on Jane’s patent application) in one significant way: in the Quick Point keyring, the opposing prongs of the spring member exert inward pressure when secured within a groove on the exterior of a plastic medallion, whereas the opposing prongs of Norbert’s claimed spring member exert pressure outward and are secured within a slot on the interior of the medallion.^[137] Interestingly, the two prior art keyrings that are cited in Norbert’s application and which are available also disclose prongs exerting outward pressure.^[138] Most importantly, despite Norbert’s knowledge of Jane’s prior application and Quick Point’s sale of ShowRings for at least five years, Norbert’s new patent application did not cite Jane’s earlier application or list Jane as an inventor.^[139]

Within days of filing his new patent application, Norbert approached Gerard Goessling of Quick Point to suggest that Quick Point acquire a license under the new patent application and any resulting patent. It does not appear that Norbert shared the new patent application with Goessling. During these discussions, Norbert also appears to have suggested to Goessling that he had approached one or more competing manufacturers regarding a potential license of the new application.^[141]

Goessling did not receive this news with pleasure. On April 10, Quick Point’s attorneys wrote to Norbert, “to confirm Mr. Goessling’s warning” that any license of a key holder to another company would “constitute a violation of [Jane’s] license agreement with Quick Point Pencil.”^[142] The attorneys also pointed out that Jane’s license “is in respect of the disclosure of [the Aronson] application (not merely in respect of its claims)” and that “[t]his license being exclusive, it follows that you are not free to grant any license to anyone else to make anything disclosed in said application.”^[143] Norbert, apparently intimidated by the firm’s warning, ceased discussions with other companies regarding the new application.^[144]

It is not known whether Norbert had actually approached other companies or which companies they were. He may have suggested this possibility merely as a negotiation ploy to encourage Quick Point to license the new application and restore the royalty rate to 5%, given its imminent reduction to 2.5%. But if this were merely a negotiation ploy, it backfired and, as Norbert admitted years later, he “made no further attempts to exploit” the new application,^[145] which was issued as a patent in 1964 with no mention of Jane or her prior application anywhere in its file history.^[146]

F. Rejection

On June 26, 1961, the fifth anniversary of the licensing agreement, per the agreement Quick Point reduced the royalty it paid Jane to 2.5%.^[147] Then, on September 27, the Patent Board of Appeals rejected Jane’s application.^[148] Though an appeal was possible, Norbert and Jane did not pursue one (possibly because Norbert’s new application was beginning its own prosecution journey through the Patent Office).^[149]

The final event that defined 1961 for Jane and Norbert was their divorce after twelve years of marriage. According to each of their families the divorce was amicable.^[150] Each of them eventually remarried (he in 1965 and she in 1967) and, though they had no children together, Jane and Norbert each had children with their second spouses.^[151] The families remained on good terms, Norbert’s children referring to her as “Aunt Janie.”^[152]

Perhaps prompted by Norbert’s second marriage, in 1965 Norbert and Jane requested that Quick Point split its royalty payments evenly between them. Goessling rejected this request, informing Jane by letter that “we will continue our payments to you as per our original agreement and whatever disposition you care to make of these payments is entirely your affair and not the affair of Quick Point Pencil Company.”^[153]

Quick Point continued to pay royalties per the agreement, and in 1968 Jane used some of these proceeds to purchase a home with her new husband, Fred Hossfeld, in Lincolnwood, a suburb of Chicago.^[154]

G. The Lawsuit

During all these years, Quick Point continued to manufacture and sell keyrings according to the Aronson design and to pay royalties at the 2.5% rate. In 1968, Gerard Goessling, the founder of Quick Point, died, and his son, John G. Goessling, took over the company as president.^[155]

By 1975, twenty years after the original licensing agreement was signed, Quick Point had earned more than $7 million in revenue from the sale of keyrings and paid Jane nearly $204,000 in royalties.^[156] Yet, despite its growing sales volume, Quick Point began to experience competition from other manufacturers. In the late 1960s and early 1970s, at least eight competitors began to manufacture “substantially identical” keyrings.^[157] Yet those competitors were not obligated to pay royalties on their sales, giving them a competitive advantage over Quick Point.^[158]

As a result, in November 1975 Quick Point filed a declaratory judgment action in the District Court for the Eastern District of Missouri, seeking a declaration that the licensing agreement was void, invalid, unenforceable, a restraint of trade and opposed to public policy, indefinite, uncertain and ambiguous, all relieving Quick Point of the obligation to make further royalty payments under the agreement.^[159]

The district court, interpreting the agreement on its terms, ruled in favor of Jane. It reasoned that “[t]his contract is valid as long as plaintiff continues to manufacture and sell the key holders. If plaintiff desires to cease paying royalties, it must also cease making and selling the key holders.”^[160]

The Eighth Circuit reversed in a split 2–1 decision. The majority relied, among other things, on Brulotte, decided in 1964. It reasoned that:

[Jane] believed her invention was patentable and she submitted a patent application. Had a patent issued she would have had 17 years of exclusive rights to her invention before it became part of the public domain. She approached Quick Point with her idea and the parties entered into a contract anticipating that a patent would issue. If that had happened, under Brulotte, Quick Point’s liability for royalties would have ended after 17 years in spite of the contract. . . . We do not believe the result should be different here.^[161]

In effect, the court ruled that Jane should not have a longer right to profit from Quick Point’s sales after failing to obtain a patent than she would have had if she had succeeded in her patent application.^[162]

H. The Burger Court

Jane and Norbert appealed, seeking certiorari at the Supreme Court. Against the odds, the Court agreed to hear the case.^[163] The deck may have seemed stacked against them. First, they were arguing against the Eighth Circuit’s interpretation of Brulotte, a case that has proved to be one of the Supreme Court’s most durable precedents.^[164] Moreover, for the Supreme Court argument, Quick Point turned to one of the most renowned appellate litigators in the country, Erwin Nathaniel Griswold. The former Langdell Professor and Dean of Harvard Law School, Griswold went on to serve as Solicitor General of the United States under President Lyndon B. Johnson, a position in which he argued more than 120 cases before the Supreme Court.^[165] After leaving the government, Griswold joined the powerful law firm Jones, Day, Reavis & Pogue, where in 1974 he successfully argued a patent case, Kewanee Oil v. Bicron, in which the Supreme Court held, in an opinion written by Chief Justice Burger, that the Patent Act did not preempt application of Ohio’s trade secret statute to a chemical invention for which the owner did not seek a patent.^[166] Aronson seemed to be a sequel to Kewanee Oil, in which Griswold would try to establish the boundaries of the earlier case. He would argue that, unlike Ohio’s trade secrecy law, Missouri’s contract law should be preempted by the federal Patent Act, which would have given Jane no more than seventeen years of protection had she obtained the patent that she originally sought in 1955.^[167]

Jane did not travel to Washington to attend the oral argument, but Norbert did.^[168] From the observer’s gallery, he found Griswold’s overall demeanor to be arrogant.^[169] Arrogant or not, the former Harvard Dean failed to carry the day. The Court released its opinion approximately three months later. In an opinion written by the Chief Justice, the Court hewed closely to Kewanee Oil and overturned the Eighth Circuit’s decision.^[170] It reasoned that, absent an issued patent, the Patent Act had no bearing on the case. Therefore, Missouri contract law should be permitted to authorize the perpetual royalty arrangement agreed by the parties.^[171] At home in Chicago, Norbert opened a bottle of champagne. Jane, who heard the news from Norbert, was happy as well.^[172]

IV. Aronson and Domestic Invention

Aronson v. Quick Point Pencil is included in case books because of its implications for the doctrines of patent misuse (there was none) and preemption of state contract law (none here either). Yet Aronson is worth study for reasons beyond its doctrinal holdings. In particular, it sheds light on the practice of innovation in mid-twentieth century America, which can inform debates over innovation policy today.

A. Patents and Innovation Policy

The U.S. Constitution authorizes Congress to establish a patent system in order “[t]o promote the Progress of Science and useful Arts” by giving inventors, for limited periods of time, the exclusive right to their discoveries.^[173] This is the so-called Progress Clause, which justifies the exclusivity granted to a patent holder, and the exclusion of others from the market for the claimed invention, on the grounds that the heightened profits that will accrue to the inventor while its rights are exclusive are necessary to incentivize invention, innovation, and other scientific progress.^[174] That is: without granting some degree of exclusivity to the creator of an invention, imitators could replicate the invention soon after it entered the market and sell it in competition with the inventor. Yet the imitators would have an unfair advantage inasmuch as they did not invest in making the invention and are effectively free riding on the original investment of the inventor. This imbalance would eventually discourage innovative firms from investing the necessary resources to make inventions in the first place. As such, this incentive scheme is directed principally toward encouraging the innovative activity that results in a new invention.

Yet, as numerous authors have pointed out, there are other ways to incentivize innovation including government research grants, small business loans, procurement contracts, prize systems, and even liability waivers.^[175] For example, in many academic institutions researchers produce innovations in order to obtain grant funding, to advance their careers, to place papers in prestigious journals, to attract high-quality graduate students, and the like.^[176] Likewise, scholars have identified large bodies of creative and inventive output that are generated by individuals seeking social commendation, reputational gains and personal satisfaction, and for which patents play little or no incentive role.^[177] Finally, there is an influential strand of literature that explores the growing practice of “user innovation” in which users of technology seek to improve everything from ski bindings to Wi-Fi routers to make their own use of these technologies more effective, efficient, or enjoyable.^[178]

B. Domestic Innovation

For much of history, when women were excluded from technical occupations, they innovated in areas close to the domestic sphere in which they found themselves operating. For example, Zorina Khan has found that women inventors between 1750 and 1900 in the United States, Britain, and France developed a large number of improvements to “corsets, bonnets, skirts, shoes, and other forms of apparel,” some of which they patented.^[179] The technology of corsets, in particular, owes many of its advances to women, who were its principal beneficiaries (or victims, depending on one’s perspective).^[180] This phenomenon is one of domestic innovation^[181]—the improvement of the apparatus of our daily lives, made by ordinary people who act not to build companies or win academic awards, but to improve their own comfort, enjoyment, health, or efficiency.^[182] In many cases, the inventors behind these innovations were women.

This category comfortably encompasses Jane Aronson and her novel keyring design. As discussed above, the primary motivations for its invention were to improve the lives of keyring users by avoiding broken fingernails and arthritis pain.^[183] Though Jane sought a patent on the invention, it does not appear that obtaining a patent or the market exclusivity that it afforded were principal motivations behind her inspiration for the design (i.e., it is unlikely that she sat down and asked herself, “how can I modify this keyring design so that it will be more commercially advantageous?”).

Norbert, however, may have responded to a different, and more traditional, set of patenting incentives. His business—specialty advertising—required him to offer a range of memorable yet inexpensive products that his clients could imprint with their names and logos. Jane may have devised a spring and medallion keyring design that could easily be opened and closed, but it seems likely that Norbert had the idea to imprint advertising copy on the surface of the medallion.^[184] Norbert was an archetypical amateur inventor; the list of his many patented inventions reads like the contents of a cabinet of technological curiosities: an egg opening device, a steel measuring device, an improved umbrella, a garment hanger, a telephone memo clip, a fingernail file, a tongue-depressor dispenser, a carton cutter, a reading light magnifier, a lever adapter for door knobs, a pill cutter, an inflatable garment bag, an absorptive baby-wiping mitt and, of course, a number of novel key holders.^[185]

Thus, while Jane may be viewed as a practitioner of domestic innovation, Norbert exemplifies professional (albeit small-scale) invention. Jane’s eureka moment was an improvement on an everyday device, solving an unsolved problem. Norbert’s innovation was directed at an opportunity for business expansion. Together, they created a device whose use continues to this day.

C. The Commercialization Incentive

Perhaps the most interesting aspect of the innovation story revealed by Aronson concerns Quick Point Pencil. Quick Point licensed the Aronson keyring invention in the hope that it would soon be patented.^[186] As a manufacturer, the exclusivity afforded by a patent could be extremely valuable, particularly with respect to a product that was inexpensive and relatively easy to manufacture. When a patent failed to materialize, Quick Point reported, with disappointment, that at least eight competitors had entered the market for specialty keyrings made according to the same design.^[187] But whether or not the patent eventually issued, in 1956 Quick Point entered into an arrangement with Jane and Norbert with the expectation of a patent.^[188] The potential patent thus acted as an incentive, and perhaps the main incentive, for Quick Point to license the invention from Jane and Norbert.

In this regard, a patent (or a potential patent) may serve a different incentive function than the one that is commonly attributed to the patent laws: the incentive for an inventor to make an innovation. The potential patent in Quick Point’s case served not as an inducement for Jane to create her new keyring design, but as an incentive for Quick Point to make a deal with her so that the invention could be commercialized.

Commercialization of a technology is a second, and somewhat independent, activity from its initial invention. As Ted Sichelman has observed, “patent law is primarily designed to induce invention; any protection it provides to commercialization is mostly an afterthought.”^[189] Yet as cases like Aronson show, the existence, or at least the potential, of patents can be attractive to firms that will bring new technologies to the market. This reality forms the crux of the academic–industrial licensing ecosystem as enabled by the Bayh-Dole Act of 1980, in which inventions that are made in university laboratories, often funded by government grants, are patented.^[190] Those patents are then licensed to private firms for commercial exploitation. Like Jane, who created her keyring to solve a practical design problem she experienced in everyday life, university researchers, whose direct compensation is often tied to government grants, would probably create inventions even without the patent incentive to motivate them. Yet, also like Jane and Norbert, university researchers, and universities themselves, are largely incapable of manufacturing commercial products. Thus, granting a patent license to a firm capable of commercializing an invention can encourage the production and sale of a product that the inventors otherwise might not have the capacity to produce.^[191]

In the end, however, the commercialization incentive may feed back into the original incentive to innovate. That is, without commercialization by someone, even if not the original inventor, most inventions would never reach a broad market. In fact, depending on how difficult they are to produce, these inventions might not even benefit the inventor. Jane, for example, without the help of Quick Point, probably could not have produced her own keyrings.^[192] Thus, the incentive to commercialize may be little more than an extension of the incentive to invent. As Chief Justice Burger writes in Aronson, “[p]ermitting inventors to make enforceable agreements licensing the use of their inventions in return for royalties provides an additional incentive to invention.”^[193] This, in the end, may be the best way to conceptualize the commercialization aspect of patent licensing. The exclusivity granted by the patent system is intended to promote the creation of new and improved products, not to enable firms to reap excess profits from the production and sale of products that do not represent a meaningful advance in the field.^[194] Thus, while Quick Point may have been attracted by the possibility of a patent on Jane’s invention, they were also willing to enter into a contract to commercialize the keyring even without a patent, and seemingly did so successfully for many years.

V. Patents Through the Lens of Gender

Despite its hopeful message concerning domestic innovation, Aronson also highlights very real gender disparities that have burdened the innovation economy historically and continue to affect it today. Colleen Chien argues that patents can help to alleviate economic inequality and should thus be encouraged as instruments of social reform policy.^[195] If so, then careful consideration should be given to the causes of disparities in patent issuances to women and other underrepresented groups.

A. The Scarcity of Women Patent Holders

Though it was uncommon for a woman in Jane Aronson’s position to apply for a patent during the 1950s, it was not unprecedented, and anecdotes about successful women inventors now populate the literature of innovation diversity. The first woman to apply for a patent in England is reported to have been Amye Everard als Ball, a widow who was awarded a patent in 1637 for “Preparing a Tincture of Saffron, Roses, &c.”^[196] Another Stuart-era widow, Amy Potter, obtained a patent in 1678 for making woolen lace used in burial shrouds.^[197] The prevalence of widows among early women patent holders is notable, as unmarried women and widows in England (and later the United States) enjoyed a broad range of legal and economic rights, whereas married women had virtually no legal identity and were largely subsumed within the legal personage of their husbands, unable to own property in their own names.^[198]

As a result, in 1715, Pennsylvania merchant and planter Thomas Masters obtained an English patent claiming a new method for cleaning and curing corn; interestingly, the grant states that it is “[a] new Invention found out by Sybilla his wife.”^[199] This disclosure betrays the fact that Sybilla herself was the inventor of the method and that the patent was filed in her husband’s name for the sake of expediency (or simply acknowledging the fact that she could hold no property as a married woman).^[200] The following year, Sybilla managed to obtain a patent in her own name, claiming “[a] new way of Working and Staining Straw.” The inventor is named as “Sybilla Masters, wife of Thomas Masters, Merchant, of Pensilvania [sic].”^[201] Of course, even with this outward recognition of Sybilla’s contribution, the patent would still be owned by her husband.

The United States enacted a Patent Act in 1790.^[202] Within two decades, the first U.S. patents were issued to women: Hazel Irwin of Boston, for a cheese press (1808), and Mary Kies of Connecticut, for a method of weaving straw for hats (1809).^[203] It is not known whether these women were married, single, or widowed, but given that laws empowering married women to own private property in the United States were not enacted until the middle of the nineteenth century,^[204] it is likely that they were not married.

In the years immediately following the Civil War, Margaret Knight, who invented a highly effective paper bag folding machine, founded a successful manufacturing company and “became a major inventive force in a number of nineteenth-century industries,” eventually obtaining fourteen patents.^[205] In the early twentieth century, Beulah Louise Henry, with forty-nine patents to her name (one posthumous) was celebrated as the “Lady Edison,” having invented improvements for typewriters, toys, sewing machines, apparel, and an assortment of other products.^[206] And Hedy Lamarr, the Hollywood actress promoted as “the most beautiful woman in the world,” worked with avant-garde composer George Antheil in 1941 to invent a frequency-hopping radio communication system for guiding torpedoes with a reduced risk of enemy transmission jamming.^[207] One assistant patent examiner writing in 1927 proudly proclaimed that “[a] perusal of the index of inventors for any of the recent years will show the names of a large number of women listed.”^[208] And today, numerous books and websites celebrate the inventive efforts of women past and present.^[209]

Yet these success stories belie the reality that women have historically been (and continue to be) vastly underrepresented among patent holders in the United States and elsewhere.^[210] Zorina Khan reports that prior to 1860, only seventy-seven U.S. patents were issued to women,^[211] out of a total of approximately forty thousand patents.^[212] While the number of patents issued to women increased after the Civil War, women’s share of patent issuances remained about 1% throughout the nineteenth century.^[213] Later gains were not dramatic: during the 1910s, the share of patents issued to women was less than 2%,^[214] from 1976 to 2013 it was less than 8%,^[215] and as recently as 2019 was still a mere 12.8%.^[216] Today, as observed by Colleen Chien, it is still the case that “[a]pplications by female inventors are about 7 percent less likely to be granted and otherwise fare worse, on average, than applications by male inventors.”^[217]

B. Challenges for Woman Inventors

1. Domestic Inventions

As discussed in Section V.A, above, given their exclusion from the technical workforce, women have historically innovated in fields close to the home. The patents issued to women inventors have mirrored this trend. Zorina Khan has found that nearly one-third of all U.S. patents issued to women between 1795 and 1895 (and more than 40% of such patents in Britain and France) covered consumer goods, with around 20% of these patents in all three countries directed to “corsets, bonnets, skirts, shoes, and other forms of apparel.”^[218] Kara Swanson finds that “[a]lmost one quarter of corset-related patents issued in the United States before 1880 were issued to women.”^[219] Thus, unlike the industrial packaging equipment of Margaret Knight or the radio signaling technology of Hedy Lamarr, a significant number of innovations historically patented by women addressed the problems that women encountered in their daily lives.

This focus of women inventors on the improvement of the apparatus of everyday life, as opposed to more advanced technologies, has been viewed with concern by some women’s advocates. As the Department of Labor’s Women’s Bureau observed in 1923, “If the steady increase in the numbers of patents granted women is accounted for merely by the increase in the number of patented hairpins, hair curlers, and such trifles in feminine equipment, it is without large significance either to civilization or as an indication of women’s inventive abilities.”^[220] A perception thus exists that even when women do obtain patents for their innovations, these patents, and innovations, are less valuable than they might otherwise be.

2. Social Status of Women Inventors

Khan has also compiled telling data regarding the social situations of women who obtained U.S. patents during the nineteenth century. First, she finds that 92.4% of women inventors worked alone, without co-inventors (i.e., spouses or other male relatives), “indicating the independent nature of female inventive activity.”^[221] Supporting this view, she also finds that 66.3% of women inventors worked outside the home in a range of occupations including artisan and manufacturer, but also as professionals or “businesswomen.”^[222] Despite their independence, 40% of these women inventors were married, with 38.8% widowed and only 21.2% single.^[223]

Of those women inventors who listed co-inventors in their patents, over 36.3% co-invented with related men (husbands, brothers, and fathers), while 46.7% invented with unrelated men (often machinists, engineers, patternmakers, toolmakers, manufacturers, and artisans with whom they collaborated to reduce an invention to practice).^[224] Only 17% of women co-invented with other women (either related or unrelated).^[225]

3. Passing and Masking

Kara Swanson sheds light on another aspect of women inventorship: the “passing” of women and racial minorities as white men in order to overcome “the biases of . . . patent examiners deciding who was capable of invention,”^[226] what Colleen Chien has described as “the historical phenomenon of ‘masking’ one’s identity to increase the odds of patenting and commercial success.”^[227] Nearly two centuries after the substitution of Thomas for Sybilla Masters in colonial Pennsylvania, Swanson describes the case of Ellen Elgin, a late nineteenth-century Black woman who “reportedly sold the rights to her improved clothes-wringer to ‘an agent’ for $18,” thus permitting him to obtain a patent on the device and profit from its commercialization.^[228] As Swanson explains, “Replacing a stigmatized identity with a white male identity as the named inventor facilitated the movement of the invention through the patent system and into the marketplace, while the true inventor vanished.”^[229] She further recounts:

Even [during the 1930s], after marital property reform, Max Landman claimed falsely to be the inventor when patenting his wife’s invention, an umbrella with a transparent pane to improve the vision of its user. When interviewed for a magazine article, Mr. and Mrs. Landman readily explained that it was Eva Landman who had the idea, after dashing across the street in a rainstorm and colliding with a truck, and who perfected the invention while recuperating from her injuries. While the Landmans did not reveal their reasoning, for a married woman inventor, consensual assignment by patent to one’s husband continued to make business sense, as a means of avoiding bias and stigma. Max, as a man, might also have had better connections and experience to sell or license patent rights or to manufacture the invention.^[230]

Cases like these, which resonate with that of Jane and Norbert, are not likely to be isolated ones. As Deborah Merritt notes, the patent record contains numerous instances of women who permitted a husband or other male relative to file on their behalf.^[231]

4. Appropriating Women’s Inventions

Finally, stories abound of women inventors whose inventions, and even patents, were appropriated by their male relatives and collaborators. Kara Swanson writes that it is widely rumored that “Elias Howe, lauded as the inventor of the sewing machine, was only successful after his wife transformed his failed model into a working device.”^[232]

Senator Amy Klobuchar recounts the convoluted story of Lizzie Magie, who invented and patented the precursor of the popular board game Monopoly in 1924 (based on an earlier version of the game that she patented in 1903).^[233] Charles Darrow, a “down-on-his-luck salesman,” played the game in Atlantic City and, with some minor modifications, patented his own version in 1935. At the same time, he persuaded George Parker, the founder of game publisher Parker Bros., to acquire Magie’s rights for $500. While Magie faded into obscurity, Darrow was celebrated for decades as the creator of Monopoly, which earned millions for him and Parker Bros.^[234]

Less overt, though no less pervasive, forms of intellectual appropriation appear to exist throughout the patent system. While the studies noted above focus on women as inventors and patent applicants, Jordana Goodman recently studied the rate at which female patent attorneys are credited with authorship of patent applications across technology groups, finding that female patent attorneys are consistently underrepresented as the authors of patent applications compared to their overall presence in the profession.^[235] Goodman hypothesizes that one of the reasons for this underrepresentation may be the systematic claiming of credit for patent applications by male law firm partners at the expense of more junior female associates who do the work.^[236] Thus, the appropriation of female effort by male counterparts may be evidenced not only in inventions, but the patent applications protecting them.

5. Commercialization Hurdles

In addition to limitations on their opportunities for innovation and patenting, women have traditionally faced obstacles to the commercialization of their inventions. As noted in Subsection B.3 above, one of the reasons that Eva Landman may have allowed her husband to claim to have invented her umbrella improvement was to better their chances of licensing or selling the rights to the resulting patent.^[237] The revolutionary frequency-hopping torpedo guidance system patented by Hedy Lamarr and George Antheil in 1942 was acquired by the U.S. Navy, which effectively mothballed the invention and never produced or utilized it.^[238] Though frequency hopping (which became known as spread-spectrum communication) was deployed in a range of telecommunications applications years after the expiration of the patent, and today can be found in every smartphone, it is unlikely that any of the developers of these later technologies relied on, or even knew about, the Lamarr–Antheil invention.^[239]

Far from being anecdotal, the difficulty of women to move their innovations, patented or not, into the commercial market is significant. In the United States, less than 3% of venture-capital funding goes to companies founded by women, which represent approximately 40% of new companies (in some European countries, the figure is an even more dismal 1%).^[240] Thus, commercial opportunities for women, at least historically, have been constrained along with access to the patent system.

C. Theories About Patent and Gender

1. Social Theories

Numerous theories have been advanced to explain the shortfall of women among successful applicants for U.S. patents. Colleen Chien summarizes a range of “[i]nequalit[ies] of [o]pportunity to [i]nnovate” that affect women, including “historical and structural factors such as institutional discrimination, limited educational opportunities, and inadequate access to capital,” as well as “girls selecting out of STEM classes, women having stronger comparative advantages in reading and non-STEM fields, or differences in preferences.”^[241]

But Jessica Lai and others have argued that “the focus on women in STEM is a red herring,” and that deeper social factors impact the ability of women to invent and patent those inventions.^[242] Some of these factors include disparities within the work environment and the socioeconomic context of the family.^[243] Jordana Goodman has recently analyzed patenting in academic settings, finding disparities between patents issued to male and female inventors (as well as Black inventors) to be attributable, in part, to “tenure publication expectations, existing cultural frameworks . . . and the differing burdens of faculty mentorship.”^[244] Factors handicapping women inventors may even arise from socially learned behaviors exhibited by women in STEM settings, as Lai observes with respect to the differing attitudes (i.e., humility versus hubris) of the male and female pioneers of CRISPR gene editing technology, and how this may have affected their respective patents.^[245] Similarly, Gauri Subramani, Abhay Aneja, and Oren Reshef have found that female inventors are less likely to continue to pursue a patent application after its initial rejection by the Patent Office.^[246] Possible reasons for this differential response to rejection, they hypothesize, could include a lack of resources to continue prosecution or the interpretation of a rejection as a negative appraisal of the quality of their work, causing them to lose confidence in their inventions.^[247]

2. Institutional Bias

Since its earliest days, the Patent Office has been staffed primarily by men.^[248] And as Jessica Lai observes, “even in the twenty-first century, most patent examiners and patent attorneys are male.”^[249] Recent data indicate that approximately 81% of patent examiners are male (and 76% are white).^[250] Not surprisingly, given these facts, researchers have consistently identified bias against women inventors at the Patent Office. Deborah Merritt writes that, in the nineteenth century, “[t]he Commissioner of Patents and his examiners expressed disdain for some uniquely female inventions. Examiners also seemed less willing to give female applicants the informal assistance they rendered male applicants. Without this assistance, a woman’s application was less likely to mature into a granted patent.”^[251]

Kyle Jensen and co-authors have identified more recent systemic bias against women inventors at the Patent Office, finding in 2018 that “approximately two-thirds of the lower probability of acceptance for applications with women inventors stemmed from the examiner side.”^[252] Likewise, patent claims submitted by female inventors were narrowed more frequently to overcome rejections, thereby reducing the scope of women’s claimed inventions in comparison to men’s.^[253] Finally, a 2024 study by the Patent Office found that even when female inventors obtained patents, those patents were cited less frequently by other patents than comparable patents with male inventors, even controlling for factors such as geography and technology subclass.^[254]

3. Structural Bias

Beyond these pragmatic explanations, Lai has argued that patent law itself is, as a structural matter, biased against women, as “men do the kinds of inventing that are protected by patents.”^[255] Dan Burk notes that legal standards in patent law, such as the “Person Having Ordinary Skill in the Art” (PHOSITA) are inherently biased against women inasmuch as they “foster[] a view of innovation that is detached, isolated, and divorced from the community.”^[256] These observations lead Burk to question the “current purposes of the patent system itself,” theorizing that:

The patent system is generally justified as intended in some fashion to promote technological innovation, but it may be that the desire to do so reflects an unhealthy patriarchal drive toward domination of resources, both material and social. The patent system might be working well . . . but we might be concerned that even if it is working “well” in the sense of promoting technological innovation, it is in a different sense working poorly because technological innovation is simply a bad idea. To the extent that technological innovation translates into accelerated and expanded means of consumption, we might be concerned that promoting technological innovation effectively means promoting environmental disaster, social disparity, materialism, and personal alienation.^[257]

VI. The Unsolved Mysteries of Aronson

What really happened in Aronson, and why should it matter to scholars, lawyers, and judges today? The case is perplexing on a number of fronts and frustrating in its missing details. But even the reasons for these lacunae are unclear. Was somebody trying to hide something and, if so, what? This final section speculates about the unanswered questions of Aronson v. Quick Point Pencil Co. and how they inform a present-day understanding of issues surrounding domestic innovation and gender in patenting.

A. Here’s to You, Mrs. Aronson

In its published opinion in Aronson, the District Court for the Eastern District of Missouri refers to Jane as “Defendant”^[258]—a common judicial usage. The Eighth Circuit, also following customary judicial practice, refers to her by her surname (as listed in the patent application)—“Aronson.”^[259] It is only at the Supreme Court that Chief Justice Burger, in his majority opinion, and Justice Blackmun in his concurrence, along with Erwin Griswold and counsel for the government at oral argument, refer to Jane as “Mrs. Aronson,”^[260] using the traditional gendered honorific indicating that a woman is married.

Today, of course, the honorific “Mrs.” is rarely used and has largely been replaced by the status-neutral (though still gendered) “Ms.” (which today is being challenged by “Mx.” and other gender-neutral honorifics).^[261] The replacement of Mrs. with Ms. in common usage was a gradual process that began during the “women’s liberation” movement of the 1970s and gained significant attention with the launch of Ms. magazine (its slogan “more than a magazine, a movement”) in 1972.^[262] Yet it was only in 1986 that the stalwart New York Times acknowledged that “Ms.” had “become a part of the language” and adopted the use of the status-neutral honorific in its news and editorial columns (though it would continue to use “Mrs.” and “Miss” “when it knows the marital status of a woman in the news, unless she prefers ‘Ms.’”).^[263]

Chief Justice Burger, in his early seventies when he wrote the opinion in Aronson, may perhaps be forgiven for his failure to adapt to the emerging usage conventions of the day.^[264] The rest of the Burger Court largely followed suit. A Lexis search of 1979 Supreme Court opinions identifies five cases, other than Aronson, in which the term “Mrs.” appears. One such usage is merely a quotation from a document in the case record.^[265] One refers to the victim of a homicide.^[266] And the other three refer to women in cases involving family members having the same surname (a child custody case,^[267] a tax case,^[268] and an alimony case^[269]), largely for purposes of disambiguation. During the same period, only three Supreme Court opinions used the honorific “Ms.” and one used the outdated honorific “Miss” in reference to an individual (the latter simply quoting the testimony of a witness).^[270] Of the “Ms.” uses, two involved disambiguation of married individuals in the footnotes of factual recitations.^[271] The third, however, was a gender discrimination case brought under the Equal Protection Clause, and the plaintiff, “Ms. Feeney,” is (appropriately) referred to by Justice Stewart twice using the honorific “Ms.”^[272]

Aronson, however, is the only 1979 case in which the principal litigant is referred to repeatedly (nineteen times) by the honorific “Mrs.” with no apparent need for disambiguation (i.e., though Jane’s husband Norbert is mentioned briefly in the opinion, his surname was Leopoldi, not Aronson). Even so, the Justices were assiduous in applying the “Mrs.” honorific to Jane. In his bench copy of the first draft of the opinion, Justice Blackmun circled the word “Mrs.” in pencil the first time it appeared^[273]—was he surprised? Concerned? Curious? Then, in the second draft, Chief Justice Burger carefully inserted “Mrs.” before “Aronson” on page 3, at a location where he had previously omitted it.^[274]

Yet despite this level of care, the Justices’ repeated references to Jane as “Mrs. Aronson” are puzzling because, as noted in the Introduction to this Article, there was no Mrs. Aronson, at least not one who had any relation to the case. At the time of the Supreme Court case, Jane had long been remarried and used her second husband’s surname, Hossfeld.^[275] And when she filed her patent application in 1955, her surname was Leopoldi (as reflected in her 1955 German sponge patent application).^[276] Her legal name was Jane Aronson only before her marriage to Norbert, when it was, in terms of outdated marital-status honorifics, “Miss” Aronson, not “Mrs.”

Of course, as discussed above, there may have been good reasons (or at least plausible reasons) for Jane to file her patent application under the name Aronson.^[277] But whatever the ethical and legal merits of this stratagem, it in no way made Jane into “Mrs. Aronson.” So Chief Justice Burger’s usage, while it might be excused in another case as disambiguation or, at worst, a somewhat antiquated sign of respect, here it seems to highlight Jane’s marital status more insistently—a status that, unlike that in a case involving child custody or alimony, has nothing to do with the merits. It could be seen, rather, as a belittling of Jane and her inventive achievement: a design that Chief Justice Burger describes as “ingenious . . . [but] so simple that it readily could be copied unless it was protected by patent.”^[278]

But far from being prejudicial to Jane’s case, it may have been the simplicity of Jane’s invention, coupled with her non-threatening status as a married woman, that endeared Jane and her invention to the Court. In its larger context, Aronson was decided during a busy time in the Court’s developing patent law jurisprudence. In 1972, the Court decided Gottschalk v. Benson, concerning the eligibility of computer software patents,^[279] followed in 1978 by Parker v. Flook, another complex algorithmic patenting case.^[280] Then in 1980, the Court heard two of the most significant patent cases of the century, Diamond v. Diehr, finally settling the question of algorithmic patentability in the context of a process for curing rubber,^[281] and Diamond v. Chakrabarty, a monumental 5–4 decision that opened the door to the patenting of genetically modified living organisms.^[282] As observed by Christopher Seaman and Sheena Wang, during this period “the Justices and their law clerks . . . often felt out of their depth when it came to understanding both the complexity of patent law and the intricacies of the technical details in these cases.”^[283] Amidst such hotly contested cases concerning complex and unfamiliar technologies, Jane’s novel keyring design may have seemed a breath of fresh air: for once, an invention that the Justices could actually understand.^[284]

But while the Justices of the Supreme Court may have viewed Jane and her keyring with a measure of paternalistic affection, the examiners at the Patent Office almost certainly did not.

B. Will the Real Aronson Keyring Please Stand up?

1. Lost Key(ring)s

As discussed above, Jane’s original patent application appears to be lost.^[285] Even in 1978, at the time that the Supreme Court case was briefed and argued, amicus curiae Ercon, Inc. appears frustrated that the application is missing from the Court’s record.^[286] Likewise, during oral argument, one of the Justices asked Jane’s counsel whether there was a picture or representation of the keyring anywhere in the record.^[287] Jane’s counsel, C. Lee Cook, Jr., responded that there was no representation of the keyring in the printed record, but that “an actual sample of the key ring” may have been “attached to the record which came to the Court.”^[288] He continues that “[t]he closest thing that describes it is a catalog of the respondent Quick Point, which is in the printed record, but you cannot see the inside of the key ring.”^[289] Erwin Griswold, Quick Point’s counsel, does him one better. He produces a keyring, presumably made by Quick Point, and displays it to the Justices. “I have one of them here,” he tells the Chief Justice, “and that’s it, and you put your keys on and then you, with a little force, press it back.”^[290]

2. A Key Difference

During the oral argument, Cook explained that the Aronson keyring design was different than both the design claimed in Norbert’s 1961 patent application, and also a British patent that amicus curiae Ercon, Inc. discussed in its brief.^[291] The British patent, issued to Ernest John Drown,^[292] an employee of a Birmingham manufacturer called Graham Products Limited, claims a two-piece keyholder consisting of an ornamental medallion and a resilient wire loop for holding keys, which is detachable from the medallion by pressing together the free ends of the resilient loop.^[293] Drown’s patent was issued in 1954, a year before the filing of Jane’s patent application.

Both Norbert’s and Drown’s patented designs use a wire loop whose prongs exert outward pressure when they are compressed and inserted into the medallion, thus securing them against the medallion’s interior surface. The wire prongs of the ShowRing sold by Quick Point, however, are slid over a groove on the exterior rim of the medallion, causing them to expand and exert inward pressure that secures them in place against the outer rim of the medallion.^[295] The difference between a loop with prongs exerting outward pressure against the interior of the medallion and a loop with prongs exerting inward pressure against the outer rim of the medallion is, from a purely mechanical standpoint, significant, and one that would likely enable an applicant to traverse an anticipation or obviousness objection based on the other design.

This difference between inward- and outward-pressing prongs supports two possible narratives that can explain what happened to Jane’s patent application and why it was rejected. Though we will probably never know which of these narratives, if either, reflects the “true” sequence of events between 1955 and 1961, the existence of both narratives, even if merely plausible, serves the modern reader. Just as in Hernan Diaz’s 2022 Pulitzer Prize-winning novel Trust, a succession of contradictory narratives may bring us closer to some version of a truth that is finally unknowable, and in doing so may illuminate larger truths that, ultimately, are more important than the specific facts of the case at hand.^[296]

3. First Narrative – Jane Claims Inward-Pressing Prongs

The first narrative goes as follows: Jane’s 1955 patent application disclosed and claimed a novel keyring with inward-pressing prongs: the ShowRing advertised in Quick Point’s catalog and manufactured and sold by Quick Point.^[297] No prior art keyholder utilizes this design, so the application’s continued rejection seems wrong. Though it is impossible to rule out any number of technical defects in the application that could have led to its rejection, it seems likely that most technical objections could have been traversed over five years of prosecution.^[298]

One possible explanation for the rejection of Jane’s application is gender bias at the Patent Office. Such bias, as discussed in Section V.C.2, above, clearly exists today, and was even more pronounced during the 1950s. As such, filing the application in Jane’s name may have been a tactical error on the part of Jane and Norbert, who might have fared better if they had filed the application in Norbert’s name, a “masking” strategy successfully used by women inventors since at least the days of Sybilla Masters.^[299] Under this version of the story, Norbert’s decision to file subsequent patent applications in his own name is sensible. In fact, his later keyring design with outward-pressing prongs sailed through the Patent Office with little objection, notwithstanding the citation of at least two other keyring designs with outward-pressing prongs.^[300]

But this story places significant explanatory weight on gender bias, even in the face of an invention of striking novelty. And while women inventors have historically faced significant hurdles within the patent system, they have also obtained numerous patents, particularly on improvements to household goods and everyday articles.^[301]

4. Second Narrative – A Quick Point Improvement?

Given these considerations, a second narrative may be worth considering. In this narrative, Jane’s 1955 application may have been identical to Norbert’s 1961 application, both claiming a two-piece keyring whose prongs exerted outward pressure, as also disclosed by Drown. In this version of events, Norbert’s 1961 application would have been little more than a copy of Jane’s application, with his name substituted for hers as the inventor. This would explain why Norbert never disclosed his 1961 application to Gerard Goessling at Quick Point^[302]—Goessling would have realized immediately that they were one and the same application, and may have acted accordingly, possibly even by notifying the Patent Office. It also explains why Norbert never entered Jane’s original application into the record of the litigation brought by Quick Point.^[303] Were he to do so, then his subterfuge would have been exposed, even if years later.

But why re-file the same patent application under a new name after it had been repeatedly rejected? Perhaps because the examiner assigned to review Jane’s application found that the design with outward-pressing prongs was anticipated by Drown’s British patent or other prior art devices and after five years of prosecution, this objection could not be overcome. But Norbert, the former chess hustler, may have found a way to beat the patent system. If he re-filed the application in his own name, omitting any reference to Jane’s prior application or the Drown patent, the examiner randomly assigned to review the new application might never find Drown’s patent. And in the days before electronic databases and workflow management software, there would be little chance that the second examiner would conduct the investigation necessary to discover that an application assigned to him under a new name had already been examined and rejected by one of his colleagues. Perhaps this sleight of hand paid off. Norbert’s patent was granted, with no citation to Drown’s British patent or Jane’s prior application.^[304]

But if this second narrative reflects what really happened, and Jane’s patent application disclosed a keyring with outward-pressing prongs, then how did Quick Point come to manufacture a keyring with inward-pressing prongs? One possible explanation lies with Quick Point itself and the ingenuity of Gerald Goessling, its founder. Recall that Goessling was a serial inventor who had once obtained his own patent on an improved key holder.^[305] It is possible that, while prototyping the Aronson keyring design for production at his facility, Goessling determined that a keyring with inward-pressing prongs secured against the outer rim of a medallion would be more reliable and easier to manufacture than one with outward-pressing prongs inserted into the body of the medallion. Could Goessling have patented his improvement to the Aronson design? Probably. But perhaps Goessling was, at that time, more focused on the practicalities of his manufacturing business than patenting. After all, he had already paid for a license to make the keyring and had no intention of authorizing others to make competing products under the improved design. Moreover, he may have been concerned that Norbert and Jane might challenge any patent that he filed deriving from their original design, particularly after they disclosed their then-secret design to him.^[306] And by the time that Jane’s patent was rejected by the Patent Office, the ShowRing with its inward-pressing prongs had already been on the market for years, thereby precluding its patentability.^[307]

So Quick Point manufactured the improved keyring and sold it for twenty years. Gerard Goessling died in 1968, and by the time that his son John decided that Quick Point should no longer pay royalties to Jane, nobody at Quick Point knew or remembered that the actual production design had been perfected by Goessling. Nobody, that is, except Norbert and maybe Jane. Which helps to explain why Norbert never entered Jane’s original application into evidence during the case. Doing so would have shown that the keyring being manufactured by Quick Point, and as to which Quick Point had already paid so much in royalties, was not actually covered by the rejected Aronson patent application.

Finally, we may ask what Jane knew about all of this. Was she an active participant in what may, at root, have been a scheme to defraud the Patent Office? Or was Norbert’s later application an attempt to push Jane aside and cut her out of future royalties on the increasingly lucrative keyring business. Recall that in 1961, the same year that Norbert filed his patent application and Quick Point reduced its royalty payments, Jane and Norbert were divorced. Did these transactions have anything to do with the dissolution of their marriage? And, if so, how?

5. Patents and Domestic Life in Postwar America

The postwar decade of the 1950s in the United States has been characterized as a period of national optimism and prosperity. As Nancy Hendricks observes, “After the darkness of the Great Depression in the 1930s and bloodshed of World War II in the 1940s, many Americans felt that the 1950s brought them into a haven of security, prosperity, and abundance.”^[308] Rising incomes, at least for white men, fueled the growth of a large middle class that migrated from urban centers to new suburban housing developments.^[309] Higher salaries enabled families to survive, and thrive, on a single income, leading to the stereotypical household configuration of a husband who commuted to a job in the city and a wife who assumed primary responsibility for managing their home in the suburbs and raising their multiple children. As observed by Joanne Meyerowitz, “this tenacious stereotype conjures mythic images of cultural icons----June Cleaver, Donna Reed, Harriet Nelson----the quintessential white middle-class housewives who stayed at home to rear children, clean house, and bake cookies.”^[310] Or, as more succinctly put by Betty Friedan in her groundbreaking book, The Feminine Mystique, “Fulfillment as a woman had only one definition for American women after 1949–the housewife-mother.”^[311] And though white, middle-class women began to enter the workforce during the 1950s, these were primarily single women, it being widely understood that “the proper and preferred role for married women was in the home.”^[312]

Despite their middle-class upbringings, Jane and Norbert during the 1950s did not entirely conform to this stereotype. They were Jewish.^[313] They lived in a city apartment, rather than a suburban tract house. Jane did not spend her days at home but worked as a secretary in the city. And they had no children together during their twelve years of marriage.

Yet even in this unconventional domestic arrangement, the male-dominant economic structures of the day were strongly in evidence. Contemporary etiquette guides enjoined wives to defer to their husbands in all things.^[314] Norbert clearly spoke for the couple in dealings with Quick Point. His company, Leopoldi Advertising Gift Specialties, was owned solely by Norbert and not co-owned by Jane. And the various patents that he obtained after Jane’s initial keyring application all listed him as sole inventor, or as co-inventor with business partners or manufacturing engineers, but not with Jane.^[315] Jane played little outward role in the business. She does not seem to have obtained any other patents during her lifetime, and probably did not apply for any.

One reading of the “outward pressing” narrative is that Norbert leveraged his marital relationship with Jane to hijack her name as the listed inventor of a product of his design in order to shield the patent from his creditors. But this reading may be overly simplistic. Jane was a creative thinker who probably contributed more than a modicum of inventive ingenuity (if not the entire inventive step) to the claimed keyring design. Perhaps Norbert orchestrated their agreement with Quick Point, but someone, perhaps not he, eventually decided to end their domestic relationship at a time when such endings were less than common.

Here, we may see evidence of Jane’s independent streak. Was she, perhaps, fed up with her husband’s business schemes? Did his filing of a second, identical, patent application the year that hers was rejected contribute to the termination of their marriage? Or did Jane’s resistance to Norbert’s business plans precipitate a desire for divorce on his or her part? We will never know whether it was Jane or Norbert, or the two of them jointly, who pulled the plug on their marriage. But the fateful confluence of Quick Point’s royalty reduction, Norbert’s filing of a new keyring patent application, and their divorce all during the annus horribilis 1961 may not have occurred purely through coincidence.

VII. Conclusion

Aronson v. Quick Point Pencil Co. remains an enigmatic case in the patent law canon. Though it sets out important doctrine regarding patent misuse and preemption, it also illuminates broader issues surrounding innovation policy and the incentives to commercialize inventions that are increasingly relevant today.

Perhaps the most intriguing aspects of Aronson are its unsolved mysteries. Jane Aronson’s “lost” patent application may reveal much by its absence. If it claimed a novel keyring with inward-pressing prongs, as sold in large quantities by Quick Point, then its rejection by the Patent Office is highly suspect, as no similar design can be found anywhere in the prior art. Here is a strong case for gender bias in the patent system. But if Jane’s original application covered the same outward-pressing design as Norbert’s later application, then we find signs of legal chicanery and a husband who sought to use his wife’s identity for his own commercial purposes and a Patent Office that was willing to overlook inventive deficiencies when an application was submitted by a man.

As such, Aronson highlights the very real gender disparities that continue to burden the innovation economy. The insights that it provides into the American postwar social milieu can support efforts aimed at addressing these persistent issues today. Such efforts have not been insignificant. Colleen Chien and others have proposed greater governmental and institutional support of innovation activity by women and other individuals from underrepresented groups.^[316] Another such proposal would allow patent applicants to remove (or abbreviate) their names to reduce the risk of examiner bias (and to study the presence of such bias).^[317] And the Patent Office’s Patent Pro Bono Program, which facilitates the provision of free legal counsel to patent applicants, has already served a sizeable number of women inventors, who represented 43% of the Program’s applicants in 2022.^[318]

These governmental efforts supplement private sector initiatives to promote diversity in innovation and inventorship. One such initiative is the 2021 Diversity Pledge, in which companies have adopted a set of best practices to track and improve the involvement of underrepresented groups, including women, in their innovative and patenting activities.^[319] Hopefully, greater awareness of the issues surrounding patenting and gender (as well as race and other factors) will lead to further progress toward reducing the prevalence of these issues in the patent system.

---

1. Aronson v. Quick Point Pencil Co. (Aronson III), 440 U.S. 257, 257–59 (1979); see Quick Point Pencil Co. v. Aronson (Aronson I), 425 F. Supp. 600, 601 (E.D. Mo. 1976).

2. See infra Sections III.C., VI.A.

3. See Aronson III, 440 U.S. at 260. The Patent Office was renamed the Patent and Trademark Office in 1975 and the U.S. Patent and Trademark Office in 2000. U.S. Pat. & Trademark Off., General Information Concerning Patents 4 (2014), https://www.uspto.gov/sites/default/files/inventors/edu-inf/BasicPatentGuide.pdf [https://perma.cc/8FTF-FGV2]. For the sake of consistency, this Article refers to this agency as the Patent Office, except when citing documents published by the agency following one of its name changes.

4. See infra Section IV.B.

5. See, for example, Richard Rhodes, Hedy’s Folly 202–04 (2011); Catherine Musemeche, Lethal Tides: Mary Sears and the Marine Scientists Who Helped Win World War II, at 9, 129 (2022); Nathalia Holt, Rise of the Rocket Girls 159, 163 (2016); Kathy Kleiman, Proving Ground: The Untold Story of the Six Women Who Programmed the World’s First Modern Computer 1, 5 (2022); and the surprise #1 New York Times bestseller, Margot Lee Shetterly, Hidden Figures 20 (2016). See also Paperback Nonfiction Best Sellers, N.Y. Times (Mar. 12, 2017), https://www.nytimes.com/books/best-sellers/2017/03/12/paperback-nonfiction/ [https://perma.cc/STM7-8WMR].

6. I refer in this Article to the principal characters, Jane Aronson/Leopoldi/Hossfeld and Norbert Leopoldi, by their given names, Jane and Norbert, for the sake of narrative clarity.

7. In this Article, the Author conducted five different interviews with four subjects who could speak about the personal lives of Jane and Norbert as well as their interactions with Quick Point Pencil. These interviews provide helpful qualitative information that allows us to better understand the underlying dynamics of innovation and gender disparity in the United States through the lens of Jane and Norbert’s life. The interviews have been kept anonymous to protect the privacy of the subjects interviewed and the files and materials for the interviews are under the Author’s control.

8. See, e.g., Jorge L. Contreras, Intellectual Property Licensing and Transactions: Theory and Practice 805 (2022) [hereinafter Contreras, Licensing]; Jeanne C. Fromer & Christopher Jon Sprigman, Copyright Law: Cases and Materials 676–77 (3d ed. 2021); Patent Law: An Open-Source Casebook 989 (Mark Janis & Ted Sichelman eds., 2023); [1 Perspectives, Trade Secrets & Patents] Peter S. Menell et al., Intellectual Property in the New Technological Age: 2020, at 105 (2020); Lydia Pallas Loren & Joseph Scott Miller, Intellectual Property Law: Cases & Materials 669 (5th ed. 2017); Raymond T. Nimmer, Licensing of Intellectual Property and Other Information Assets 680–84 (2007).

9. See, e.g., Harold See & Frank M. Caprio, The Trouble with Brulotte: The Patent Royalty Term and Patent Monopoly Extension, 1990 Utah L. Rev. 813, 830; Rochelle Cooper Dreyfuss, Dethroning Lear: Licensee Estoppel and the Incentive to Innovate, 72 Va. L. Rev. 677, 691 (1986); David W. Hill, The Licensing of Patent Applications: Legal and Competitive Effects, 63 J. Pat. Off. Soc’y 483, 486–88, 496–97 (1981); John M. Battiato, Comment, Federal Patent Preemption: Aronson v. Quick Point Pencil Co., 1 U. Bridgeport L. Rev. 115, 127 (1980); Marian Solomon Lubinsky, Note, Patent Law—Patents and Trade Secrets—Does Federal Law Preempt State Law?—Aronson v. Quick Point Pencil Co. 440 U.S. 257 (1979), 2 W. New Eng. L. Rev. 111, 121 (1979); Joshua J. Wiener, Patent Law—Federal Patent Policy Does Not Preclude Enforcement of Royalty Contract for Unpatented Device (Aronson v. Quick Point Pencil Co., U.S. 1979), 50 Miss. L.J. 648, 654–55 (1979); Louis Altman, A Quick Point Regarding Perpetual Trade Secret Royalty Liability, 13 J. Marshall L. Rev. 127, 147 (1979).

10. See supra note 9 and accompanying text.

11. See Morton Salt Co. v. G.S. Suppiger Co., 314 U.S. 488, 493 (1942).

12. Brulotte v. Thys Co., 379 U.S. 29, 29–30 (1964) (owner of a patent on a hop-picking machine charged users of the machine royalties for a fixed seventeen-year period, which in many cases extended after the patent had expired).

13. Aronson III, 440 U.S. 257, 259 (1979).

14. Id. at 260.

15. Id.

16. See infra Section III.H.

17. Aronson III, 440 U.S. at 261; see Aronson I, 425 F. Supp. 600, 601 (E.D. Mo. 1976); Quick Point Pencil Co. v. Aronson (Aronson II), 567 F.2d 757, 759, 762 (8th Cir. 1977).

18. See Aronson III, 440 U.S. at 258, 266; Solicitor General: Erwin N. Griswold, U.S. Dep’t of Just., https://www.justice.gov/osg/bio/erwin-n-griswold [https://perma.cc/R2S5-R4DR] (last updated Sept. 18, 2023).

19. Aronson III, 440 U.S. at 258, 264–65. The holding of Aronson echoes that of an earlier district court case involving a perpetual obligation to pay royalties on the unpatented formulation for the oral antiseptic marketed as Listerine. See Warner-Lambert Pharm. Co. v. John J. Reynolds, Inc., 178 F. Supp. 655, 658–61 (S.D.N.Y. 1959); Contreras, Licensing, supra note 8, at 366–72 (discussing Listerine case).

20. See Interview with Subject #3 (May 4, 2022); Birth Record of Jane Doris Aronson, FamilySearch, https://www.familysearch.org/ark:/61903/1:1:QKMW-HXW1 [https://perma.cc/
    BX4M-LL7A] (last visited Sept. 21, 2024); see also Birth Record of Sidney Mortimer Aronson, FamilySearch, https://www.familysearch.org/tree/person/details/G4K1-WFN [https://perma.cc/D52G-2266] (last visited Oct. 27, 2024).

21. See Sydney M Aronson in the 1900 United States Federal Census, Ancestry, https://www.ancestry.com/discoveryui-content/view/10565751%3A7602 [https://perma.cc/3Q86-4WVD] (last visited Sept. 21, 2024).

22. Interview with Subject #4 (June 9, 2022).

23. Interview with Subject #1 (Aug. 21, 2021). Temple Sholom was founded in 1867, shortly after the Civil War, by leading members of the Reform Jewish movement. A New World. A New City. A New Synagogue, Temple Sholom, https://www.sholomchicago.org/history [https://perma.cc/CFR2-TS25] (last visited Sept. 12, 2024).

24. Lake View High School—Chicago, The Red and White 128 (1943).

25. Interview with Subject #4 (June 9, 2022).

26. Id.

27. Jane D Leopoldi in the 1950 United States Federal Census, Ancestry, https://www.ancestry.com/discoveryui-content/view/219110430:62308? [https://perma.cc/A4A7-PQ7R] (last visited Sept. 14, 2024); Jane Doris Aronson, FamilySearch, https://www.familysearch.org/ark:/61903/1:1:QKMW-HXW1 [https://perma.cc/49PJ-BNDE] (last visited Sept. 14, 2024); Norbert Leopoldi, FamilySearch, https://www.familysearch.org/ark:/61903/1:1:QV92-CQ14 [https://perma.cc/28D4-TZT7] (last visited Oct. 11, 2024).

28. See Georg Traska & Christoph Lind, Hermann Leopoldi: The Life of a Viennese Piano Humorist 15 (Dennis McCort trans., 2013); Hermann Leopoldi, Music & the Holocaust, https://holocaustmusic.ort.org/places/camps/central-europe/buchenwald/leopoldihermann/ [https://perma.cc/A3ZA-4BUR] (last visited Oct. 20, 2024).

29. 4 Felix Czeike, Historisches Lexikon Wien 32 (2004); Hermann Leopoldi, supra note 28.

30. Traska & Lind, supra note 28, at 38.

31. Id. at 99; Hermann Leopoldi, supra note 28.

32. See Interview with Subject #3 (May 4, 2022). Though he never achieved master status, Norbert maintained a love of chess throughout his life. The culmination of that avocation came in 1963 when, as president of the Chicago Chess Club, Norbert had the opportunity to play a series of games with Grandmaster Bobby Fischer. As one Fischer biographer recounts:

    The night before the final round [of the Western Open at Bay City, Michigan], Fischer played a bout of five-minute chess with Norbert Leopoldi, a Chicago advertising man known as a strong midwest player. Word swept through the tournament hall that Fischer had won $250. The next morning, after playing all night without sleep, the figure had risen to $3,500 . . . Out of hundreds of games played, Leopoldi managed to win three games.

    Frank Brady, Bobby Fischer: Profile of a Prodigy 54, 69–70 (Dover Publ’ns, Inc. 1989) (rev. ed. 1973); Local Chess Promoter Norbert Leopoldi, 80, Chi. Trib., https://www.chicagot
    ribune.com/1992/11/06/local-chess-promoter-norbert-leopoldi-80/ [https://perma.cc/FZL9-U
    UZ4] (last updated Aug. 10, 2021, 3:32 AM).

33. Traska & Lind, supra note 28, at 226 & n.4.

34. U.S. Dep’t of Labor, List or Manifest of Alien Passengers for the United States Immigration Officer at Port of Arrival, S.S. George Washington, Sailing from Hamburg (1930) https://www.familysearch.org/ark:/61903/3:1:33S7-9545-QTG [https://perma.cc/H9ND-2GXV]; U.S. Dep’t of Labor, List of United States Citizens for the Immigration Authorities, S.S. George Washington, Sailing from Hamburg (1930), https://www.familysearch.org/ark:/61903/3:1:33SQ-G545-QBH [https://perma.cc/PFV8-GGY8]; U.S. Dep’t of Labor, List or Manifest of Alien Passengers for the United States, S.S. Bremen, Sailing from Bremen (1930), https://www.familysearch.org/ark:/61903/3:1:33S7-95HS-WKP?view=index&personArk=%2Fark%3A%2F61903%2F1%3A1%3A24FC-N8W&action=view&cc=1923888 [https://perma.cc/C2C6-LMJV].

35. See Traska & Lind, supra note 28, at 169.

36. U.S. Dep’t of Labor, List or Manifest of Alien Passengers for the United States Immigration Officer at Port of Arrival, S.S Volendam, Sailing from Rotterdam (1938), https://www.familysearch.org/ark:/61903/1:1:242H-8BD [https://perma.cc/TPV6-SN5P].

37. Traska & Lind, supra note 28, at 226. Less sanguine is the story of Norbert’s father. Shortly after Norbert’s departure for Belgium, Hermann Leopoldi was arrested by the Gestapo on charges of performing seditious musical pieces. List or Manifest of Alien Passengers for the United States Immigration Officer at Port of Arrival, S.S Volendam, supra note 36; Traska & Lind, supra note 28, at 214–15. He was transported to the Dachau concentration camp outside of Munich, where he stayed for four months, after which he was transferred to the Buchenwald camp. There, by a rare stroke of good fortune, the camp’s deputy commandant was a music lover who regularly forced the prisoners to sing songs for his entertainment. One day this officer, tiring of traditional folk songs, ordered the prisoners to write a song about Buchenwald itself. Hermann Leopoldi’s entry in this song competition was the winner and became known as the “Buchenwald March.” See id. at 215 & n.13, 218–19. Through the intervention of Hermann’s wife Eugenie, he was released in February 1939. Id. at 226. Shortly thereafter he emigrated to America, where he enjoyed a successful career on the musical stage, finally returning to Vienna in 1947. Id.

38. Regina Leopoldi, Chess Tidbits, Ill. Chess Bull., May–June 1993, at 12, 15.

39. U.S. Dep’t of Just., Statement of Master of Vessel Regarding Changes in Crew Prior to Departure, S.S. Stephen W. Kearny (1944), https://www.familysearch.org/ark:/61903/1:1:2HS7-JNQ [https://perma.cc/79C2-V9CM]; see Liberty Ships Built by the United States Maritime Commission in World War II, Am. Merch. Marine at War, http://www.usmm.org/libertyships.html [https://perma.cc/T4GS-2BBM] (last visited Nov. 16, 2024).

40. Interview with Subject #1 (Dec. 11, 2021).

41. Id.

42. Id.

43. See U.S. Dep’t of Com., 1950 Census of Population and Housing, Illinois, Cook County, Chicago 11 (1950), https://www.familysearch.org/ark:/61903/1:1:6X1D-V5KR [https://perma.cc/7NMS-RPEC].

44. See Wendy A. Woloson, Crap: A History of Cheap Stuff in America 147–49 (2020); Henry S. Bunting, Specialty Advertising: The New Way to Build Business 1–2, 5, 24 (2d ed. 1914); Becky Zbozen, What Is Specialty Advertising and Why Should I Invest in It?, Hatteras (May 24, 2022, 9:01 AM), https://web.4hatteras.com/hatteras-news/what-is-specialty-advertising [https://perma.cc/CH3T-XRS5].

45. Woloson, supra note 44, at 152, 154, 164; Top Industries that Are Buying the Most Promotional Products, Inkwell Glob. Mktg. (June 26, 2018), https://inkwellusa.com/top-industries-that-are-buying-the-most-promotional-products/ [https://perma.cc/6W96-SP78].

46. Bunting, supra note 44, at 5–7, 12–13; see James Khattak, PPAI Celebrates the Legacies of the 2024 Promotional Products Pioneers, PPAI (Jan. 10, 2024), https://www.ppai.org/media-hub/ppai-celebrates-the-legacies-of-the-2024-promotional-products-pioneers/ [https://perma.cc/7VPY-2HHQ].

47. Woloson, supra note 44, at 148.

48. Id. at 161. In 2023 dollars, this is equivalent to a range of $6.2 billion to $8.7 billion. U.S. Inflation Calculator, https://www.usinflationcalculator.com [https://perma.cc/MP4B-L6F8] (last visited Sept. 12, 2024).

49. Interview with Subject #2 (Feb. 21, 2022). Gerald August Goessling, Ancestry, https://www.ancestry.com/genealogy/records/gerald-august-goessling-24-54bpx7 [https://perma.cc/3979-S4YE] (last visited Nov. 16, 2024); John Corrigan, 96-Year-Old Supplier Quick Point to Shut Down, PPAI (Aug. 8, 2024), https://www.ppai.org/media-hub/96-year-old-supplier-quick-point-to-shut-down/ [https://perma.cc/N3WC-8VRU].

50. Interview with Subject #2 (Feb. 21, 2022).

51. Vintage QUICKPOINT St. Louis Mechanical Advertising Pencil Golden West Peanut Butter Bakelite Sparkle Yellow, Etsy, https://www.etsy.com/listing/231218925/vintage-quickpoint-st-louis-mechanical [https://perma.cc/W99W-87P4] (last visited Nov. 16, 2024).

52. Id.; see supra Figure 3.

53. Vintage QUICKPOINT, supra note 51.

54. See Pencil Bushing and Clip, U.S. Patent No. 2,183,350 (issued Dec. 12, 1939); Synthetic Pearl Resin, U.S. Patent No. 2,353,457 (issued July 11, 1944); see also Non-Solid Erasable Writing Medium and Instrument Utilizing Same, U.S. Patent No. 2,852,397 col. 1 (issued Sept. 16, 1958) (claiming a novel erasable ink).

55. See Printing Tubular Celluloid Articles, U.S. Patent No. 2,016,425 (issued Oct. 8, 1935); Controlling Size of Printed Impressions on Cylindrical Surfaces, U.S. Patent No. 2,133,920 (issued Oct. 18, 1938).

56. Interview with Subject #2 (Feb. 21, 2022); see supra Figure 3.

57. Interview with Subject #2 (Feb. 21, 2022).

58. See infra Part VIII; Key Container, U.S. Patent No. 1,999,290 (issued Apr. 30, 1935).

59. Warwick Frost & Jennifer Laing, Understanding International Exhibitions, Trade Fairs and Industrial Events: Concepts, Trends and Issues, in Exhibitions, Trade Fairs and Industrial Events 1, 8–10 (Warwick Frost & Jennifer Laing eds., 2018).

60. Romain Lecler, International Trade Before Globalization: The Invention of International Trade Shows in France in the 1960s, in Trade Shows in the 21st Century 157, 160–61 (Anne-Sophie Béliard & Sidonie Naulin eds., 2022).

61. U.S. Dep’t of Com., No. 55-1, International Trade Fairs and Exhibitions in France 2–3 (1995) [hereinafter Int’l Trade Fairs].

62. Id. at 3–4.

63. Interview with Subject #3 (May 4, 2022).

64. D’LITE, Registration No. 594,731 (issued Sept. 7, 1954).

65. Interview with Subject #3 (May 4, 2022).

66. Id.

67. U.S. Dep’t of Just., List of In-Bound Passengers, French S/S “LIBERTE” (1955), https://www.familysearch.org/ark:/61903/1:1:2HHK-X65 [https://perma.cc/Q6HV-QEST] [hereinafter Liberte Passenger Manifest].

68. Interview with Subject #3 (May 4, 2022).

69. Int’l Trade Fairs, supra note 61, at 3.

70. See Schwamm, German Patent No. 1,707,277, at 2 (issued Aug. 29, 1955).

71. Id. at 2–3.

72. Id. at 1.

73. Liberte Passenger Manifest, supra note 67.

74. See generally Pitt-Rivers, On the Development and Distribution of Primitive Locks and Keys 2 (1883) (tracing the use of locks and keys to ancient civilizations); John Gelder, Ancient Doors: Written Documentation from Mesopotamia, Egypt, Greece and Rome, in Water, Doors and Buildings: Studies in the History of Construction 202 (James W.P. Campbell et al. eds., 2019) (exploring the way ancient communities used locks, keys, and other mechanisms and their structures).

75. See Keyrings and Keychains, Medieval & Renaissance Material Culture, http://www.larsdatter.com/keychains.htm [https://perma.cc/FBD9-BGNB] (last visited Sept. 12, 2024).

76. The following photograph was taken by the Author at the Musée de Centenaire in Brussels, Belgium.

77. See Keyrings and Keychains, supra note 75; Tamera Carrington, Women and Their Keys, Buxton Museum & Art Gallery (Nov. 12, 2021), https://buxtonmuseumandartgallery.wordpress.com/2021/12/11/women-and-their-keys/ [https://perma.cc/C3UU-KYZ2].

78. See Danielle M. Lasusa, Eiffel Tower Key Chains and Other Pieces of Reality: The Philosophy of Souvenirs, 38 Phil. F. 271, 271–75 (2007).

79. See Jeffrey L. Meikle, American Plastic: A Cultural History 185–87, 189–90 (1995); Sebastian Conran, Deplastification?, in Provocative Plastics: Their Value in Design and Material Culture 89, 90–91, 103 (Susan Lambert ed., 2020).

80. See Rolf Potts, Souvenir 8–9, 63 (2018); Samantha Davis-Friedman, What Are the Most Popular Souvenirs in the World?, Attractions Mag. (Aug. 28, 2024), https://attractionsmagazine.com/what-are-the-most-popular-souvenirs-in-the-world/ [https://perma.cc/VTY4-R6CS].

81. See supra Figure 5.

82. See generally Potts, supra note 80.

83. See supra Figure 5; Alyssa Mertes, What Are Keychains Made of and How Are They Created?, Quality Logo Prods. Blog (Apr. 19, 2019), https://www.qualitylogoproducts.com/blog/how-are-keychains-made/ [https://perma.cc/ST3B-LXNY].

84. See How to Add a Key to a Key Ring, WikiHow, https://www.wikihow.com/Add-a-Key-to-a-Key-Ring [https://perma.cc/397Z-Z88Z] (last updated Oct. 26, 2024).

85. See supra Figure 4.

86. Mertes, supra note 83.

87. Id.

88. See id.

89. See id.

90. See infra Section III.C.

91. See infra Part VIII.

92. Interview with Subject #3 (May 4, 2022).

93. See supra Figure 6.

94. Photo by the Author, courtesy of Quick Point Corp.

95. See supra Figure 7.

96. Photo by the Author, courtesy of Quick Point Corp.

97. Interview with Subject #4 (June 9, 2022).

98. Interview with Subject #1 (Dec. 11, 2021).

99. See Liberte Passenger Manifest, supra note 67.

100. Interview with Subject #3 (May 4, 2022).

101. Given the loss of Jane’s patent application files, the patent attorney, if any, that Jane used to prepare and file her application is not known. See infra text accompanying note 112.

102. Aronson III, 440 U.S. 257, 259 (1979) (referencing U.S. patent application, serial number 542,677 filed in October 1955).

103. See supra Section II.B.

104. See Aronson III, 440 U.S. at 259.

105. Interview with Subject #1 (Aug. 21, 2021).

106. See Schwamm, supra note 70 and accompanying text; Aronson III, 440 U.S. at 259 (referring to Jane as Mrs. Jane Aronson and not Jane Leopoldi).

107. Norbert, of course, was no stranger to the transmutation of names, his own father having changed his legal name from Kohn to Leopoldi as a business expediency. See supra notes 28–29 and accompanying text.

108. Author’s review is based on search of Google Patents for inventor name Norbert Leopoldi and was conducted on January 20, 2024. Number of Patents for Inventor Norbert Leopoldi, Google Pats., https://patents.google.com/advanced [https://perma.cc/7FWG-8JAF] (search “Norbert Leopoldi” under search terms and add “Leopoldi” as the inventor) (last visited Oct. 24, 2024).

109. Id.

110. Belt or Band with Hollow Opening for Receiving Therein the Buckle-End Thereof and Method of Making Same , U.S. Patent No. 5,129,104 (issued July 14, 1992).

111. Author’s review. See also Number of Patents for Inventor Norbert Leopoldi, supra note 108; Window Cleaning Device, U.S. Patent No. 2,886,839 (filed Sept. 27, 1957).

112. Before the advent of electronic filing, the Patent Office did not retain copies of patent applications that were ultimately rejected. Prior to 2000, patent applications filed in the United States were not published (publication only began as a result of the American Inventors Protection Act of 1999). See Charles R. Macedo, Effect of the Publication of Applications Under the American Inventors Protection Act of 1999, 13 Fed. Cir. Bar J. 627, 628–29, 632–33 (2004). Though the Aronson application was eventually submitted to the Board of Patent Appeals, only selected decisions from that body have been retained in electronic databases such as Lexis—Aronson’s application is not one of these. The application may have formed a part of the court record in the litigation initiated during the 1970s, see infra Section III.G. and see supra note 117 and accompanying text, but the records from the District Court for the Eastern District of Missouri, in which the litigation was initiated, have been destroyed. E-mail from Steven Boyd, Recs. Clerk E.D. Mo., U.S. Dist. Ct. (Jan. 19, 2021, 1:52 PM) (on file with the Author). The docket records from the Court of Appeals for the Eighth Circuit and the Supreme Court do not contain a copy of the application. See Docket Entries, Aronson II, 567 F.2d 757 (8th Cir. 1977) (No. 77-1142); Chronological List of Relevant Docket Entries, Aronson III, 440 U.S. 257 (1979) (No. 77-1413). Counsel of record in the case have been unable to locate any records from the case or have been unresponsive to my inquiries. The papers of Erwin Griswold, Quick Point’s advocate at the Supreme Court, which are held at Harvard University, make no mention of the case. Erwin N. Griswold, Ould Fields, New Corne: The Personal Memoirs of a Twentieth Century Lawyer 374 & n.27 (1992). See generally Erwin N. (Erwin Nathaniel) Griswold Papers, Harv. L. Sch. Libr., https://id.lib.harvard.edu/ead/law00047/catalog [https://perma.cc/5GVE-CSJ4?type=image] (last visited Sept. 27, 2024). The current CEO of Quick Point could find no copy of the original patent application in Quick Point’s files. Jane and Norbert’s surviving descendants who were interviewed for this Article have no written records of the patent application or the case.

113. Aronson III, 440 U.S. 257, 259 (1979). Based on the date of filing, the official Serial Number of the application would have been 03/542,677. See 37 C.F.R. § 1.54 (2023).

114. See Aronson I, 425 F. Supp. 600, 601 (E.D. Mo. 1976).

115. Id.

116. Id.

117. Joint Stipulation of Uncontested Facts at 26, Aronson II, 567 F.2d 757 (8th Cir. 1977) (No. 77-1142) (U.S. Dist. Ct. filed Dec. 6, 1976) [hereinafter Joint Stipulation].

118. Id.; Aronson III, 440 U.S. at 260.

119. Aronson III, 440 U.S. at 260. The five-year prosecution period for this simple mechanical application may seem lengthy by current standards. See Patents Pendency Data November 2024, U.S. Pat. & Trademark Off., https://www.uspto.gov/dashboard/patents/total-pendency-by-tc.html [https://perma.cc/Z8ZX-92AJ] (last visited Dec. 25, 2024) (in December 2023, total application pendency time in Technology Center 3700 (Mechanical) was 26.5 months). However, the Patent Office in the 1950s was plagued by a variety of issues caused by lack of funding and staff, which led to a particularly large backlog of pending applications. See Chas. H. Keel, Patent Office Backlog, 30 J. Pat. Off. Soc’y 73, 73–75 (1948) (responding to Congressional complaints about the “long pending application” problem); Gregory J. Battersby et al., A Seventy-Five Year History of NYIPLA, N.Y. Intell. Prop. L. Ass’n, https://www.nyipla.org/nyipla/History.asp [https://perma.cc/45YQ-8Q9Y] (last visited Sept. 23, 2024) (“By 1954, the Patent Office situation was desperate – the backlog of pending applications had reached alarming proportions, morale was low, personnel was leaving faster than replacements could be found.”). It is also possible, of course, that Norbert and Jane found it advantageous to stretch out the prosecution of their application in order to continue to benefit from the full 5% royalty paid by Quick Point for as long as possible.

120. Complaint for Declaratory Relief at 5, Aronson II, 567 F.2d 757 (8th Cir. 1977) (No. 77-1142) (U.S. Dist. Ct. filed Nov. 18, 1975).

121. See id.

122. Aronson I, 425 F. Supp. 600, 601 (E.D. Mo. 1976).

123. Interview with Subject #3 (Dec. 11, 2021).

124. Affidavit of Jane Aronson at 55, Aronson III, 440 U.S. 257 (1979) (No. 77-1413) (U.S. Dist. Ct. filed Nov. 4, 1976).

125. See supra text accompanying note 58.

126. Joint Stipulation, supra note 117, at 23, Ex. A (1956 letter to Jane from Quick Point); see infra Figure 8.

127. Joint Stipulation, supra note 117, at 23, Ex. B (Additional Paragraphs to Agreement-Letter of Quick Point Pencil Co. of St. Louis, Letter of June 26th 1956, signed by Mr. G.A. Goessling, President of Quick Point).

128. Brulotte v. Thys Co., 379 U.S. 29, 30 (1964).

129. A copy of the 1965 letter can be found in the Joint Stipulation, supra note 117.

130. Joint Stipulation, supra note 117, at 23, Ex. C (Letter dated July 13, 1956 from Gerald Goessling to Mr. and Mrs. N. Leopoldi).

131. See id. at 24.

132. See id. at 25.

133. Id. at 24.

134. Id. at 24, Ex. E (Supplementary Agreement between Norbert Leopoldi and Quick Point Pencil dated January 27, 1959).

135. See supra Section III.C.

136. See infra Figure 9. The application matured into Key Holder, U.S. Patent No. 3,126,729 (issued Mar. 31, 1964).

137. Compare supra Figure 6, with infra Figure 9. As shown in Figure 7, Quick Point may have been selling both forms of keyrings: the ShowRing with inward-pressing prongs (upper left) and other keyrings with outward-pressing prongs inserted into the medallion (i.e., football keyring in lower right). Joint Stipulation, supra note 117, at 18, Ex. D-2 (Letter dated April 10, 1961 from Gravely, Lieder & Woodruff to Mr. Norbert Leopoldi and Mrs. Jane Leopoldi).

138. See Key-Ring, U.S. Patent No. 1,094,568 ll. 64–68, 76–85 (issued Apr. 28, 1914); Noveau système de porte-clefs, French Patent No. 1,248,407 (issued Nov. 7, 1960); '729 Patent ll. 25–33. The other references cited in Norbert’s patent application (GB Patent No. 21,311 and IT Patent No. 574,127) are not currently available via the European Espacenet patent search tool (accessed Sept. 24, 2024). '729 Patent ll. 25–33.

139. See '729 Patent ll. 25–33; see infra note 146 and accompanying text. The consistency of this filing with the applicant’s duty of candor to the Patent Office may be questioned. 37 C.F.R. § 1.56 (2023).

140. Image from U.S. Patent No. 3,126,729. See infra note 146.

141. Affidavit of Norbert Leopoldi at 56, Aronson III, 440 U.S. 257 (1969) (No. 77–1413) (U.S. Dist. Ct. filed Nov. 4, 1976).

142. Joint Stipulation, supra note 117, Ex. D-2 (Letter dated April 10, 1961 from Gravely, Lieder & Woodruff to Mr. Norbert Leopoldi and Mrs. Jane Leopoldi).

143. Id. at 17, Ex. D-2.

144. Affidavit of Norbert Leopoldi at 56, Aronson III, 440 U.S. 257 (1979) (No. 77–1413) (U.S. Dist. Ct. filed Nov. 4, 1976).

145. See id.

146. '729 Patent. It is also interesting that while Norbert clearly told Goessling about his new patent application, he never disclosed the application to Goessling. As Quick Point’s lawyers remind Jane, “you have several times promised to send a drawing of the proposed new holder to Mr. Goessling.” Joint Stipulation, supra note 117, Ex. D-2 (postscript). It is possible that Norbert did not wish to reveal his new keyring design to Goessling because, having seen Jane’s original application, he would realize that the “new” application was uncomfortably similar to the old one and perhaps advise the Patent Office of the same.

147. Joint Stipulation, supra note 117, at 24; Aronson III, 440 U.S. 257, 260 (1979).

148. Joint Stipulation, supra note 117, at 26.

149. See supra Section III.E.

150. Interview with Subject #1 (Aug. 21, 2021); Interview with Subject #2 (Feb. 21, 2022); Interview with Subject #4 (June 9, 2022).

151. Interview with Subject #1 (Aug. 21, 2021); Interview with Subject #2 (Feb. 21, 2022); Interview with Subject #4 (June 9, 2022).

152. Interview with Subject #1 (Aug 21, 2021).

153. Joint Stipulation, supra note 117, Ex. D-3 (Letter dated March 26, 1965 from G.A. Goessling to Jane).

154. Interview with Subject #4 (June 9, 2022).

155. Interview with Subject #2 (Feb. 21, 2022); Gerald August Goessling, supra note 49; In Memoriam: John “Jack” Goessling, PPAI (Aug. 20, 2015), https://www.ppai.org/media-hub/in-memoriam-john-jack-goessling/ [https://perma.cc/F6VF-V3GG].

156. Aronson III, 440 U.S. 257, 260 (1979).

157. Affidavit of John G. Goessling at 57, Aronson III, 440 U.S. 257 (1979) (No. 77-1413) (U.S. Dist. Ct. filed Nov. 5, 1976).

158. Id.

159. Complaint for Declaratory Relief at 6–7, Aronson II, 567 F.2d 757 (8th Cir. 1977) (No 77-1142) (U.S. Dist. Ct. filed Nov. 18, 1975).

160. Aronson I, 425 F. Supp. 600, 602 (E.D. Mo. 1976).

161. Aronson II, 567 F.2d 757, 758, 761–62 (8th Cir. 1977) (citation omitted) (citing Brulotte v. Thys, 379 U.S. 32 (1964)).

162. Id. at 762.

163. Aronson III, 440 U.S. 257, 258 (1979). The Supreme Court’s appellate jurisdiction in most cases is discretionary, with the Court agreeing to hear only ten patent cases in the 1970s. See Christa J. Laser, Certiorari in Patent Cases, 48 AIPLA Q.J. 569, 571 fig.1, 575 (2020); 28 U.S.C. § 1254.

164. Despite multiple challenges, the much-maligned decision in Brulotte has withstood the test of time, most recently in Kimble v. Marvel Entertainment, LLC, 576 U.S. 446, 449 (2015).

165. James M. Thunder, Top Supreme Court Advocates: All-Time Numerical Rankings, Oyez (Feb. 4, 2022), https://www.oyez.org/top-advocates [https://perma.cc/8AUB-9AHC]; Griswold, Law School Legend, Dies at 90, Harv. Crimson (Nov. 21, 1994), https://www.thecrimson.com/article/1994/11/21/griswold-law-school-legend-dies-at [https://perma.cc/4VQH-EBXY].

166. Griswold, supra note 112, at 353–55, 355 & n.5; Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 471, 473–74, 479, 492 (1974). Griswold was a preeminent legal expert on trade secrecy law. As Solicitor General, he argued the seminal case New York Times v. United States, seeking to withhold the infamous Pentagon Papers from public disclosure. See New York Times Co. v. United States (The Pentagon Papers Case), 403 U.S. 713, 713–14 (1971). As Solicitor General he also argued the reporter’s privilege case United States v. Caldwell, one of several cases collectively consolidated and known as Branzburg v. Hayes, 408 U.S. 665, 665, 675, 678 (1972).

167. Transcript of Record at 23–24, 46, 49, Aronson III, 440 U.S. 257 (1979) (No. 77–1413) [hereinafter Aronson Transcript].

168. Interview with Subject #1 (Aug. 21, 2021); Interview with Subject #3 (May 4, 2022).

169. Interview with Subject #1 (Aug. 21, 2021).

170. Aronson III, 440 U.S. 257, 258, 266 (1979). Chief Justice Burger and Griswold joked about their prior experience with Kewanee Oil during the oral argument in Aronson. Aronson Transcript, supra note 167, at 51.

171. Aronson III, 440 U.S. at 261–62, 265–66. Following the Supreme Court’s decision, Quick Point resumed its payment of royalties to Jane. But as sales volumes for the ShowRing decreased over the years, the payments declined. Quick Point discontinued royalty payments around 2015, at which point they had diminished to a few hundred dollars per year. Interview with Subject #1 (Aug. 21, 2021, Dec. 11, 2021); Interview with Subject #2 (Feb. 21, 2022); Interview with Subject #3 (May 4, 2022); Interview with Subject #4 (June 9, 2022). The cessation of payments was not challenged by Jane or Norbert’s surviving relatives. Quick Point ceased operations in late 2024. Corrigan, supra note 49.

172. Interview with Subject #4 (June 9, 2022).

173. U.S. Const. art. I, § 8, cl. 8.

174. William M. Landes & Richard A. Posner, The Economic Structure of Intellectual Property Law 1 & n.4, 11, 13, 20, 294–96 (2003).

175. See, e.g., B. Zorina Khan, Inventing Ideas: Patents, Prizes, and the Knowledge Economy 65–68 (2020) (discussing the history and economics of innovation prizes and various forms of incentives); Daniel J. Hemel & Lisa Larrimore Ouellette, Innovation Policy Pluralism, 128 Yale L.J. 544, 551–52, 557 (2019) (discussing a combination of innovation incentives); W. Nicholson Price II, Grants, 34 Berkeley Tech. L.J. 1, 41–42, 49 (2019) (discussing grant incentives for innovation); Michael J. Burstein & Fiona E. Murray, Innovation Prizes in Practice and Theory, 29 Harv. J.L. & Tech. 401, 452–53 (2016) (discussing the role of prizes in innovation); Camilla A. Hrdy, Commercialization Awards, 2015 Wis. L. Rev. 13, 52–54 (2015) (discussing local grants for commercialization of innovations).

176. Lisa Larrimore Ouellette & Andrew Tutt, How Do Patent Incentives Affect University Researchers?, Int’l Rev. L. & Econ., Feb. 6, 2020, at 4–5, Art. No. 105883 (finding that obtaining grant funding and other factors are significant incentives for academic innovation).

177. See, e.g., Christi J. Guerrini & Jorge L. Contreras, Credit for and Control of Research Outputs in Genomic Citizen Science, 21 Ann. Rev. Genomics & Human Genetics 465, 478–79 (2020) (varying motivations of “citizen scientists”); Jonas Anderson, Nonexcludable Surgical Method Patents, 61 Wm. & Mary L. Rev. 637, 679, 684 (2020) (physicians motivated to obtain unenforceable patents for reputational enhancement and signaling); Colleen Chien, Beyond Eureka: What Creators Want (Freedom, Credit, and Audiences) and How Intellectual Property Can Better Give It to Them (By Supporting, Sharing, Licensing, and Attribution), 114 Mich. L. Rev. 1081, 1084 (2016) (book review) (creative producer desires for freedom, credit and audience); Jessica Silbey, The Eureka Myth: Creators, Innovators, and Everyday Intellectual Property 105–06 (2015) (examining motivations of a broad range of creators); Yochai Benkler, The Wealth of Networks 66–67, 96 (2006) (open source code community norms and motives).

178. See, e.g., William W. Fisher III, The Implications for Law of User Innovation, 94 Minn. L. Rev. 1417, 1423, 1430, 1471 (2010); Katherine J. Strandburg, Users as Innovators: Implications for Patent Doctrine, 79 U. Colo. L. Rev. 467, 478 (2008); Eric von Hippel, Democratizing Innovation 28 (2005).

179. B. Zorina Khan, Designing Women: Consumer Goods Innovations in Britain, France and the United States, 1750–1900, at 24, 39–40 tbl.3 (Nat’l Bureau of Econ. Rsch., Working Paper No. 23086, 2017) [hereinafter Khan, Designing Women]; see also Deborah Jaffé, Ingenious Women: From Tincture of Saffron to Flying Machines 11–33 (2003) (detailing various innovations, by women, improving domestic items).

180. See Kara W. Swanson, Getting a Grip on the Corset: Gender, Sexuality, and Patent Law, 23 Yale J.L. & Feminism 57, 77–78 (2011) [hereinafter Swanson, Corset]; Jaffé, supra note 179, at 15–16.

181. I thank Kara Swanson for her thoughtful discussion of the terminology of this phenomenon.

182. See Jaffé, supra note 179, at 11, 34–37.

183. See supra text accompanying note 97.

184. See supra text accompanying notes 63, 65, 97–98.

185. Inventor: Norbert Leopoldi, Google Pats., https://patents.google.com/?q=(Inventor:)&inventor=Norbert+Leopoldi)&oq=Inventor:+Norbert+Leopoldi [https://perma.cc/3P3E-C67B] (last visited Oct. 16, 2024). At least one skeptic has suggested that this list of household inventions raises the issue whether Norbert may have borrowed these ideas, as well, from one or both of his wives. See supra note 98.

186. Affidavit of John G. Goessling, supra note 157.

187. Id.

188. See Aronson III, 440 U.S. 257, 259 & n.† (1979).

189. Ted Sichelman, Commercializing Patents, 62 Stan. L. Rev. 341, 344 (2010).

190. Bayh-Dole Act of 1980, Pub. L. No. 96-517, 94 Stat. 3018 (codified as amended at 35 U.S.C. §§ 200–211).

191. These concepts have been discussed in detail by scholars including Jonathan M. Barnett, Why Is Everyone Afraid of IP Licensing?, 30 Harv. J.L. & Tech. (Special Symposium) 123, 129–30, 137 (2017) and Sichelman, supra note 189, at 366–68.

192. Jane’s situation differs somewhat from that of other well-known domestic innovators who were able to use their inventions personally, sometimes for years before seeking to patent and commercialize them. For example, Frances Egbert wore the improved corset springs that her future husband made by hand for eleven years before either of them attempted to patent or commercialize the invention. Swanson, Corset, supra note 180, at 71. Likewise, Bette Nesmith Graham, a bank typist, invented liquid paper for her own use before someone asked her, “why don’t you market that?” Perseverance, Thy Name Is Bette, U.S. Pat. & Trademark Off., https://www.uspto.gov/learning-and-resources/journeys-innovation/historical-stories/perseverance-thy-name-bette [https://perma.cc/28Y9-WEMN] (last visited July 31, 2024).

193. Aronson III, 440 U.S. at 262.

194. See Mark A. Lemley, Ex Ante Versus Ex Post Justifications for Intellectual Property, 71 U. Chi. L. Rev. 129, 135–36, 138 (2004).

195. See Colleen V. Chien, The Inequalities of Innovation, 72 Emory L.J. 1, 33–34, 36 (2022) [hereinafter Chien, Inequalities of Innovation] (“When an entrepreneur lacks the wealth, status, funding, or connections to commercialize an idea, a patent can provide an economic asset that can be borrowed upon, traded, or licensed.”). But not all commentators agree. See Carys J. Craig, Intellectual Property and Gender Inequality: Towards Sustainable Development—or Sustaining the Status Quo?, in The Elgar Companion to Intellectual Property and the Sustainable Development Goals 198, 223 (Matthew Rimmer, Caroline B. Ncube & Bita Amani eds., 2024) (“Rather than struggling only to ensure that we can participate equally but individually in an unjust system, we need to refocus our political struggle on disrupting that economized system and the individuated subject it interpolates.”).

196. Jaffé, supra note 179, at 3, app. at 169 (patent number PatGB104).

197. Id. at 5–6, app. at 169 (patent number PatGB204).

198. See Antonia Fraser, The Case of the Married Woman: Caroline Norton and Her Fight for Women’s Justice, at xvi (2022) (until passage of the Married Women’s Property Act in 1870, the copyright in a work authored by a woman was owned by her husband, along with all other property); Married Women’s Property Act 1870, 33 & 34 Vict. c. 93, § 1; Kara W. Swanson, Centering Black Women Inventors: Passing and the Patent Archive, 25 Stan. Tech. L. Rev. 305, 353 (2022) [hereinafter Swanson, Centering Black Women Inventors] (“The common law doctrine of coverture was based on the theory that a married woman’s legal personhood was subsumed within that of her husband; she did not exist as an independent legal subject. Before marital property reform, which proceeded piecemeal state by state from approximately 1840 to 1890, if a married woman were to receive a patent as the true inventor, her husband would be its owner under state laws that assigned ownership of a wife’s property to her husband. The husband would be the only person entitled to assign, sell, license or otherwise exploit the patent.” (footnotes omitted)); see also Claudia Goldin, The Changing Economic Role of Women: A Quantitative Approach, 13 J. Interdisc. Hist. 707, 710 (1983) (finding that gains in women’s employment from 1870 to 1930 were almost all for single women; married women were still largely confined to the home).

199. Jaffé, supra note 179, at 6, app. at 169 (patent number PatGB401).

200. See id.

201. Id. (patent number PatGB403).

202. Patent Act of 1790, ch. 7, 1 Stat. 109 (repealed 1836).

203. See B. Zorina Khan, “Not for Ornament”: Patenting Activity by Nineteenth-Century Women Inventors, 31 J. Interdisc. Hist. 159, 165 (2000) [hereinafter Khan, Not for Ornament]. Society members as prominent as First Lady Dolley Madison were reputed to have complimented Kies’s hats. See Cokie Roberts, We Are Our Mothers’ Daughters 286–87 (rev. & expanded ed. 2009).

204. See, e.g., Married Women’s Property Act, 1848 N.Y. Laws 307; Act Concerning the Rights and Liabilities of Husband and Wife, 1860 N.Y. Laws 157.

205. See Robert P. Merges, American Patent Law: A Business and Economic History 238–39 (2022).

206. Adam Bisno & Rebekah Oakes, “There’s a Better Way of Doing That,” U.S. Pat. & Trademark Off., https://www.uspto.gov/learning-and-resources/journeys-innovation/historical-stories/theres-better-way-doing [https://perma.cc/ENM4-LAYH] (last visited Sept. 14, 2024); Joseph Rossman, Women Inventors, 10 J. Pat. Off. Soc’y 18, 19 (1927).

207. See Richard Rhodes, Hedy’s Folly: The Life and Breakthrough Inventions of Hedy Lamarr, the Most Beautiful Woman in the World 2–5, 148–49 (2011).

208. Rossman, supra note 206, at 19182.

209. See, e.g., Jaffé, supra note 179, at 6. See generally Edith G. Tolchin, Secrets of Successful Women Inventors: How They Swam with the “Sharks” and Hundreds of Other Ways to Commercialize Your Own Inventions (2024) (compiling firsthand accounts from current female inventors).

210. The situation is not much better outside the United States. See Craig, supra note 195, at 210–11; Elodie Carpentier & Julio Raffo, The Global Gender Gap in Innovation and Creativity 8 (2023), https://www.wipo.int/edocs/pubdocs/en/wipo-pub-ds-gender-2023-en-the-gender-gap-in-global-patenting-an-international-comparison-over-two-decades.pdf [https://perma.cc/297Z-9LRP]; Intell. Prop. Off., Gender Profiles in Worldwide Patenting 8–9 (2019), https://assets.publishing.service.gov.uk/media/5dcc4000e5274a5c5b62de99/Gender-profiles-in-worldwide-patenting-2019.pdf [https://perma.cc/KGC8-488D].

211. Khan, Not for Ornament, supra note 203, at 165. It is likely that counts of women patentees are understated, given gender-ambiguous names, women who filed using only their first initials, and women who permitted a husband or other relative to file on their behalf. See Deborah J. Merritt, Hypatia in the Patent Office: Women Inventors and the Law, 1865–1900, 35 Am. J. Legal Hist. 235, 245, 292 (1991).

212. U.S. Patent Activity Calendar Years 1790 to the Present, U.S. Pat. & Trademark Off., https://www.uspto.gov/web/offices/ac/ido/oeip/taf/h_counts.htm [https://perma.cc/GA9B-AXZ4] (last visited Sept. 14, 2024).

213. W. Michael Schuster et al., An Empirical Study of Patent Grant Rates as a Function of Race and Gender, 57 Am. Bus. L.J. 281, 284 (2020).

214. Id. (citing Women’s Bureau, U.S. Dep’t of Labor, Women’s Contributions in the Field of Invention: A Study of the Records of the United States Patent Office, 1, 2–3, 13 (1923), https://fraser.stlouisfed.org/files/docs/publications/women/b0028_dolwb_1923.pdf [https://perma.cc/6BV5-BJHW]).

215. Cassidy R. Sugimoto et al., The Academic Advantage: Gender Disparities in Patenting, PLoS One, May 27, 2015, at 5.

216. Off. of Chief Economist, U.S. Pat. & Trademark Off., Progress and Potential: 2020 Update on U.S. Women Inventor-Patentees 2 (July 2020), https://www.uspto.gov/sites/default/files/documents/OCE-DH-Progress-Potential-2020.pdf [https://perma.cc/VHL4-N7TF].

217. Colleen Chien, Redefining Progress: The Case for Diversity in Innovation and Inventing, 71 UCLA L. Rev. 540, 594 (2024) [hereinafter Chien, Redefining Progress] (citing studies including Kyle Jensen, Balázs Kovács & Olav Sorenson, Gender Differences in Obtaining and Maintaining Patent Rights, 36 Nature Biotechnology 307, 307 (2018) and Schuster et al., supra note 213, at 305).

218. Khan, Designing Women, supra note 179, at 24, 39–40.

219. Swanson, Corset, supra note 180, at 77.

220. Women’s Bureau, U.S. Dep’t of Labor, supra note 214, at 1, 13 (reproduced in Khan, Not for Ornament, supra note 203, at 162).

221. Khan, Designing Women, supra note 179, at 16, 37 tbl.1.

222. Id. at 38 tbl.2.

223. Id. at 37 tbl.1.

224. Id. at 17, 37 tbl.1 (determining relatedness based on surname).

225. Id.

226. Swanson, Centering Black Women Inventors, supra note 198, at 315.

227. Chien, Redefining Progress, supra note 217, at 592.

228. Swanson, Centering Black Women Inventors, supra note 198, at 308.

229. Id. at 317.

230. Id. at 355.

231. Merritt, supra note 211, at 291–92, 297–98.

232. Swanson, Centering Black Women Investors, supra note 198, at 354.

233. Amy Klobuchar, Antitrust: Taking on Monopoly Power from the Gilded Age to the Digital Age 30, 34 (2021) (crediting journalist Mary Pilon with originally uncovering the Magie story). Magie developed the “Landlord’s Game” as a tool for teaching the principles of Henry George’s progressive economic philosophy. Id. at 34.

234. Id. at 30, 35–36.

235. Jordana R. Goodman, Ms. Attribution: How Authorship Credit Contributes to the Gender Gap, 25 Yale J.L. Tech. 309, 344 (2023).

236. Id. at 327–29

237. See supra text accompanying note 230.

238. Rhodes, supra note 207, at 174, 185, 187.

239. Id. at 155, 201–02.

240. Katrine Marçal, Mother of Invention: How Good Ideas Get Ignored in an Economy Built for Men 109–10 (Alex Fleming trans., 2021).

241. Chien, Inequalities of Innovation, supra note 195, at 12–13 (footnotes omitted) (citations omitted).

242. Jessica C. Lai, Patent Law and Women: Tackling Gender Bias in Knowledge Governance 2 (2022).

243. See Carpentier & Raffo, supra note 210, at 3, 11, 19 (summarizing literature).

244. Jordana R. Goodman, Sy-STEM-ic Bias: An Exploration of Gender and Race Representation on University Patents, 87 Brook. L. Rev. 853, 893 (2022).

245. Lai, supra note 242, at 78–79.

246. Gauri Subramani, Abhay Aneja & Oren Reshef, Try, Try, Try Again? Persistence and the Gender Innovation Gap 5 (Nov. 5, 2020) (unpublished manuscript) (on file with the University of California, Berkeley Haas School of Business).

247. Id. at 3.

248. See Kara W. Swanson, Rubbing Elbows and Blowing Smoke: Gender, Class, and Science in the Nineteenth-Century Patent Office, 108 Isis 40, 44 (2017).

249. Lai, supra note 242, at 79 & n.111 (collecting sources).

250. Patent Examiner Demographics and Statistics in the US, Zippia, https://www.zippia.com/patent-examiner-jobs/demographics/ [https://perma.cc/9U34-XLDE] (last updated Apr. 5, 2024).

251. Merritt, supra note 211, at 290. Merritt also writes that “there is some evidence that unconscious biases may have affected the disposition of applications from some female inventors,” and that “there is some evidence that nineteenth-century patent examiners accorded less respect to female applicants than to their male counterparts.” Id. at 300, 302.

252. Jensen, Kovács & Sorenson, supra note 217, at 309; see also Lai, supra note 242, at 78–80 (summarizing literature).

253. Jensen, Kovács & Sorenson, supra note 217, at 308.

254. Gauri Subramani & Michelle Saksena, Untapped Potential: Investigating Gender Disparities in Patent Citations 5, 17, 28 (USPTO, Economic Working Paper No. 2024-3, 2024).

255. Lai, supra note 242, at 4.

256. Dan L. Burk, Do Patents Have Gender?, 19 Am. U. J. Gender Soc. Pol’y & L. 881, 883, 903 (2011).

257. Id. at 906 (footnotes omitted); see also Lai, supra note 242, at 30–31, 36, 38–39, 46–47 (identifying gendered biases in all criteria for patenting including novelty, nonobviousness, utility, and patentable subject matter); Inmaculada de Melo-Martín, Patenting and the Gender Gap: Should Women Be Encouraged to Patent More?, 19 Sci. & Eng’g Ethics 491, 497–98 (2013) (questioning whether patenting increases social benefit).

258. Aronson I, 425 F. Supp. 600, 601 (E.D. Mo. 1976).

259. Aronson II, 567 F.2d 757, 759 (8th Cir. 1977).

260. See Aronson III, 440 U.S. 257, 259 (1979); Id. at 267 (Blackmun, J., concurring); Aronson Transcript, supra note 167, at 17, 30.

261. See Katy Steinmetz, This Gender-Neutral Word Could Replace ‘Mr.’ and ‘Ms.,’ TIME (Nov. 10, 2015, 2:53 PM), https://time.com/4106718/what-mx-means/ [https://perma.cc/VWZ9-CQ6H].

262. See Dennis Baron, What’s in a Name? For “Ms.,” a Long History, Ms. (Aug. 27, 2010), https://msmagazine.com/2010/08/27/whats-in-a-name-for-ms-a-long-history/ [https://perma.cc/DW54-6C8S]; Meliss Arteaga, Today in Feminist History: The New York Times Says “Ms.,” Ms. (June 20, 2017), https://msmagazine.com/2017/06/20/today-feminist-history-new-york-times-says-ms/ [https://perma.cc/GKN5-2NLV] (adopting the term “as a standard form of address by women who want to be recognized as individuals, rather than being identified by their relationship with a man”).

263. Editor’s Note, N.Y. Times, June 20, 1986, at B1.

264. On the reluctance of courts to adopt emerging gender pronoun conventions, see United States v. Varner, 948 F.3d 250, 254–55 (5th Cir. 2020) (“[N]o authority supports the proposition that we may require litigants, judges, court personnel, or anyone else to refer to gender-dysphoric litigants with pronouns matching their subjective gender identity.” (footnote omitted)).

265. Davis v. Passman, 442 U.S. 228, 230 n.3 (1979) (“The full text of Passman’s letter is as follows: ‘Dear Mrs. Davis . . . .’”).

266. Jackson v. Virginia, 443 U.S. 307, 309 (1979) (“That the petitioner shot and killed Mrs. Cole was not in dispute at the trial.”).

267. Caban v. Mohammed, 441 U.S. 380, 382–83, 388 (1979) (referring to “Mrs. Mohammed,” the mother of Maria Mohammed, a party to the case, referred to throughout by her first name).

268. United States v. Caceres, 440 U.S. 741, 743, 746 (1979) (IRS bribery prosecution against husband and wife).

269. Orr v. Orr, 440 U.S. 268, 270 (1979) (alimony dispute between divorced spouses).

270. Green v. Georgia, 442 U.S. 95, 96 n.2 (1979) (identifying an individual as “Miss”).

271. United States v. Rutherford, 442 U.S. 544, 548 n.4 (1979); United Gas Pipe Line Co. v. McCombs, 442 U.S. 529, 534 n.6 (1979).

272. Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 259, 264–65 (1979).

273. Aronson v. Quick Point Pencil Co., No. 77-1413, 1st Draft, 1 (Jan. 19, 1979) (Justice Blackmun’s files, U.S. Library of Congress).

274. Aronson v. Quick Point Pencil Co., No. 77-1413, 2nd Draft, 3 (Jan. 22, 1979) (Justice Blackmun’s files, U.S. Library of Congress).

275. Jane married Frederick J. Hossfeld prior to the district court case. Aronson I, 425 F. Supp. 600, 601 (E.D. Mo. 1976); Jane D. Hossfeld in the U.S., Cemetery and Funeral Home Collection, 1847–Current, Ancestry, https://www.ancestry.com/search/collections/2190/records/500657063 [https://perma.cc/Z37M-CBHH] (last visited Nov. 27, 2024).

276. See supra notes 70–72 and accompanying text.

277. See supra notes 104–07 and accompanying text.

278. Aronson III, 440 U.S. 257, 259 (1979). The case only merits a brief mention in Erwin Griswold’s autobiographical memoir, published thirteen years after the case was decided. Ironically, Griswold incorrectly renders Jane’s surname as “Aaronson”. Griswold, supra note 112, at 374 & n.27, 421.

279. Gottschalk v. Benson, 409 U.S. 63, 64 (1972).

280. Parker v. Flook, 437 U.S. 584, 585 (1978).

281. Diamond v. Diehr, 450 U.S. 175, 191–93 (1981).

282. Diamond v. Chakrabarty, 447 U.S. 303, 318 (1980).

283. Christopher B. Seaman & Sheena X. Wang, An Inside History of the Burger Court’s Patent Eligibility Jurisprudence, 53 Akron L. Rev. 915, 922 (2019).

284. Not every Justice may have been kindly disposed toward Jane’s keyring or its attempted patenting. Justice Douglas, writing in 1950, displayed little patience with patents on mere “gadgets.” Great Atl. & Pac. Tea Co. v. Supermarket Equip. Corp., 340 U.S. 147, 154–55 (1950) (Douglas, J., concurring) (“It is not enough that an article is new and useful. The Constitution never sanctioned the patenting of gadgets. Patents serve a higher end—the advancement of science. An invention need not be as startling as an atomic bomb to be patentable. But it has to be of such quality and distinction that masters of the scientific field in which it falls will recognize it as an advance.”).

285. See supra note 112 and accompanying text.

286. Brief for Ercon, Inc., as Amicus Curiae at 4–5, 9–10, Aronson III, 440 U.S. 257 (1979) (No. 77-1413).

287. Aronson Transcript, supra note 167, at 3. The Justices posing questions during oral argument are not identified by name in the transcript. Id.

288. Id.

289. Id. at 4. It is likely that this image is the one shown in Figure 6. See supra Figure 6.

290. Aronson Transcript, supra note 167, at 27.

291. Id. at 3; see U.S. Patent No. 3,126,729 (filed Apr. 4, 1961) (Norbert’s patent); Improvements in or relating to Key Holders, GB Patent No. 707,615 (filed Jan. 22, 1952) (British patent); Brief for Ercon, Inc., supra note 286262, at 5 (discusses the British patent but does not reveal how Ercon became aware of the British patent, which is not cited in the prosecution history of Norbert’s patent).

292. Drown appears to have lived from 1904 to 1976. Ernest John Drown, Ancestry, https://www.ancestry.com/genealogy/records/ernest-john-drown-24-95wjql [https://perma.cc/4JLK-NM4X] (last visited Nov. 8, 2024).

293. Graham Products Limited appears to be related to the current company Graham Saunders Ltd., a bespoke jeweler whose website claims that it has been in business since 1876 in Birmingham’s Jewellery Quarterly. Their website contains the interesting historical anecdote:

     In the beginning there were 2 cousins who decided to combine their efforts and become jewellers. This was late 1800’s and one of the cousins has been an inventor and held patents for things electrical. During the Victorian period such things were viewed as parlour tricks a fad. So these patents were sold and no doubt was used to finance the jewellery business.

     Graham Saunders Ltd., http://www.grahamsaunders.co.uk/about [https://perma.cc/4HHR-TW
     RP] (last visited Sept. 25, 2024); see also '615 Patent, supra note 291; see supra Figure 10.

294. This image comes from Drown’s 1954 British patent. See supra text accompanying note 293.

295. See discussion supra Section III.E.

296. Hernan Diaz, Trust (2022).

297. See supra Figure 6.

298. Notably, Norbert’s 1961 application contained errors that were eventually subject to a Certificate of Correction. USPTO Certificate of Correction for U.S. Patent No. 3,126,729 (issued Sept. 8, 1964).

299. See supra notes 199–01, 251–53 and accompanying text.

300. See supra notes 136–39 and accompanying text.

301. See supra Section IV.B.

302. See supra Section III.E.

303. See supra note 112 and accompanying text.

304. Key Holder, U.S. Patent No. 3,126,729 (filed Apr. 4, 1961).

305. See supra notes 54–58 and accompanying text.

306. It is unclear that any such claim would have been successful, but not unlikely that one would have been brought.

307. Under the 1952 Patent Act, a patent would not be granted if the claimed invention was “in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States.” 35 U.S.C. § 102(b) (1952). This prohibition also begs the question how Norbert managed to patent his keyring design with outward-pressing prongs when it appears that Quick Point was also selling keyrings made to this design. See supra Figure 7.

308. Nancy Hendricks, Daily Life in 1950s America, at xx (2019). However, this prosperity was not spread evenly across the country. Id. at 44 (“Groups such as women, African Americans in both inner cities and the Jim Crow South, poor whites, and other minorities were not attaining the good jobs that were hallmarks of the nation’s prosperity.”) Id.

309. Id. at 73.

310. Joanne Meyerowitz, Introduction: Women and Gender in Postwar America, 1945–1960, in Not June Cleaver: Women and Gender in Postwar America, 1945–1960, at 1, 1 (Joanne Meyerowitz ed., 1994).

311. Betty Friedan, The Feminine Mystique 36 (1997 ed. 1963).

312. Goldin, supra note 198, at 710.

313. For a discussion of the conditions of American Jewish women during the 1950s, see Hasia R. Diner et al., Introduction, in A Jewish Feminine Mystique?  Jewish Women in Postwar America 1, 2–4 (Hasia R. Diner, Shira Kohn & Rachel Kranson eds., 2010) (“Jewish women functioned within particular communities and distinctive institutions that made their post-war history different from the U.S. norm.”).

314. See Kristina Wright, 6 Surprising Etiquette Rules from the Past, Hist. Facts, https://historyfacts.com/arts-culture/article/6-surprising-etiquette-rules-from-the-past/ [https://perma.cc/YD63-RGN2] (last visited Sept. 11, 2024) (citing Millicent Fenwick, Vogue’s Book of Etiquette (1st ed. 1948)).

315. The one exception being a 1992 patent on a belt improvement for which he listed his second wife as co-inventor. See supra notes 108–11 and accompanying text.

316. See Chien, Redefining Progress, supra note 217, at 605–06; Laura Norris et al., Diversity in Innovation: Best Practices Guide passim (2021).

317. Colleen V. Chien, Rigorous Policy Pilots the USPTO Could Try, 104 Iowa L. Rev. Online 1, 28–29 (2019).

318. U.S. Pat. & Trademark Off., Unleashing American Innovators Act of 2022: Study of the Patent Pro Bono Programs 1, 26 (2023), https://www.uspto.gov/sites/default/files/documents/FINAL_SignedUSPTOStudyUAIAPatentProBonoProgram.pdf [https://perma.cc/BN87-T8XF] (last visited Sept. 9, 2024).

319. See Angela Morris, The Diversity Pledge Has Boosted Women Inventor Rates, Survey Suggests, IAM (Feb. 8, 2024), https://www.iam-media.com/article/the-diversity-pledge-has-boosted-women-inventor-rates-survey-suggests [https://perma.cc/9E7Q-S9HR].