Later that year, the members of the Unicode Consortium agreed to include five different skin tones as a standard of emoji thanks to Parrott’s push, according to a Washington Post report. But a few weeks later, Apple declined to work with Parrott on diverse emoji, saying that the company would design its own based on Unicode standards and build them directly into the iPhone’s keyboard. The move made iDiversicons redundant.
“I thought I was doing everything right,” Parrott said. “It was tremendously disappointing.”
Parrott then spent more than five years trying to get a patent for her creation, but the USPTO kept rejecting her applications and subsequent appeals. In 2020, she filed a lawsuit against Apple for copyright infringement. Apple’s lawyers reportedly argued that “copyright does not protect the idea of applying five different skin tones to emoji because ideas are not copyrightable.” Last year, a US district judge threw out her suit, declaring that her idea of diverse emojis was “unprotectable.”
“It appeared to me that the judge had already made up his mind, even before we had an opportunity to share anything,” Parrott said.
A disproportionate number of new patents in the US go to rich corporations over small, independent business owners, especially those run by women and people of color. According to one study, over 50% of new US patents went to the top 1% wealthiest patentees in 2020. And another survey, from 2010, found that from 1970 to 2006, Black American inventors received just six patents per million people, compared with 235 patents per million for all American inventors. A 2016 study also found that Black Americans applied for patents at nearly half the rate of whites.
In 2019, the USPTO released a report called SUCCESS (which stands for the Study of Underrepresented Classes Chasing Engineering and Science Success) that it was required to produce under a new law passed in 2018. The report identified publicly available data on the number of patents that women, people of color, and veterans successfully applied for each year. The report concluded that such data was “limited.” Only 12% of US inventors granted patents in 2016 were women, it said, and there was virtually no data available on other groups.
“We clearly want this office and the administration to determine what actions has the USPTO taken to improve the collection of demographic data from patent applicants,” Lee said in an interview with BuzzFeed News. “The patent office is not an office for Big Tech, or big corporations. The goal of the patent office, from its early historic beginnings, was to drive the innovation and genius of individual Americans.”
The USPTO spokesperson pointed BuzzFeed News to initiatives that the agency had put in place to “get more aspiring inventors and entrepreneurs, including from underrepresented communities, involved in the innovation ecosystem,” such as the Council for Inclusive Innovation, the Women’s Entrepreneurship Initiative, and pro bono programs and free services to assist under-resourced inventors.
Jessica Morel, chief marketing officer at LexisNexis Intellectual Property Solutions, described the patent situation as “David versus Goliath.” She said, “It is undoubtedly challenging for individual inventors of all races, genders, and ethnicities, and often smaller companies, to get their patents approved, especially compared to enterprises with specialized expertise, such as patent attorneys, dedicated software platforms, and a track record of successful patent filings.”
Still, other experts argued that Parrott’s original idea for diverse emojis was never patentable to begin with.