The patent system provides a surprisingly rich archive of the interplay between social norms and technological change. Patent law requires applicants to publicly disclose the novelty and usefulness of their inventions, thereby bringing to light areas of innovation that may have previously lived in the shadows. In other words, patent law encourages public disclosure of technologies that are taboo—developed and practiced in secret, for reasons such as social approbation, illegality, or religious sanctity. To obtain a patent for a taboo technology, patentees must establish their legitimacy as innovators while navigating cultural norms that are hostile to their fields of innovation. As technology evolves and social norms shift over time, patents thus provide useful insight into how a technology might come to be seen as acceptable in the eyes of lawyers, patent examiners, government actors, and society at large.
This Article looks at the history of patenting within three realms of taboo technology: sexual devices, psychoactive drugs, and abortifacients. In each realm, the patented technology has existed along the boundaries of social acceptance and criminal law: unlawful in certain places and times, and lawful in others. Yet despite significant social and legal barriers to sexual autonomy, reproductive freedom, and mind-altering drug use, the patent system has long granted valuable property rights in each of these spaces. The patent registry provides numerous examples of inventors strategically describing taboo technologies in order to shift them out of the margins and into the mainstream marketplace.
This Article analyzes over 600 patents issued during the past 150 years, closely examining how patentees have strategically navigated their inventions’ potential associations with sexual desire, psychedelic experiences, women’s pleasure and autonomy, and marginalized subcultures. It shows that patents lend scientific legitimacy to taboo technologies, and demonstrates that the patent system has forecasted favorable shifts in their legal treatment. Nonetheless, the patent system also provides warning signs that the legal tides can shift back towards prohibition, as has happened with abortion post-Dobbs, and as may happen again with psychoactive drugs and sexual technologies.
