As we celebrate Black history month this year, we are reminded of the egregious oppression that Black American’s endured under slavery and Jim Crow laws. These systems of control were rationalized through the promulgation of pseudoscience and baseless stereotypes that dehumanized Black people, portraying them as uncivilized subservient people undeserving of basic rights. One of the most damaging ideas perpetuated was the belief that Black people were inherently intellectually inferior.
It is important to note that slavery did not exist in a vacuum. It was an institution that predates the United States constitution and influenced the development of many surrounding doctrines of the law. For example, since enslaved people were property, they could not own property themselves. For intellectual property (“IP”) buffs, this may raise the question: could enslaved people have owned intellectual property?
Indiscriminate Intellectual Property Statutes
In the United States, intellectual property laws were first passed in 1790. From its early origins, intellectual property law aimed to reward ingenuity by providing capital incentives to inventors and authors, thereby promoting progress in the sciences and technology.[1] Considering the dominant narrative of Black intellectual inferiority, it would be reasonable to assume that the policy purpose of IP law would exclude Black creators. Additionally, if enslaved people could not own property, it would be reasonable to infer that they could not own intellectual property. However, neither the copyright nor patent act ever explicitly discriminated on the basis of race.[2]
Patent Rights for Free Black Inventors
The Patent Act of 1793 only granted patent protection to citizens of the United States.[3] In 1800, it was amended to include noncitizens.[4] However, the Patent Act of 1836 required that a patent applicant take a patent oath, which required that the applicant to disclose their country of citizenship.[5] Thus, on its face, patent law never explicitly excluded Black inventors from patenting their inventions. In fact, the first Black man to patent his invention did so in 1821. Thomas Jennings, a free Black man in New York, invented and patented the first version of dry cleaning called “dry scouring.” Although disclosing one’s race was not required, two patents explicitly recorded the race of their inventor as a “colored man”. Both were issued to Henry Blair, a free Black man who invented the seed planter, which let farmers plant corn more efficiently. By documenting Blairs race and granting him a patent, it is apparent that the patent office granted patents to free Black men in the 1830s. Additionally, there were other Black inventors, like Robert Benjamin Lewis, Norbert Rillieux, and Joseph Hawkins that successfully patented their inventions before the Civil War.
However, the majority of people still seemingly believed in the falsehood that Black people lacked the capacity to invent. Many abolitionists sought to reverse the prominence of this falsehood by disseminating the news of Black inventions. The great abolitionist Fredrick Douglass edited his own newspaper and published stories of Black patentees.[6] Douglass and other abolitionists perceived black patents as solid evidence that could be used to claim the civil rights of Black Americans. However, the absence of a racial record in patent applications was misconstrued to support this harmful falsehood. In fact, one late 19th-century Maryland Politician used this argument to support increasing Black voter suppression. He stated: “- the colored race should be denied the right to vote because ... ‘no one of the race had ever yet reached the dignity of an inventor.”[7]
Additionally, many barriers stood in the way of Black inventors patenting their inventions. Attorneys regularly refused Black clients or were difficult to connect with. The process of the patent application was more costly than what the majority of Black Americans could afford. Moreover, the patent office was commonly located in all-white neighborhoods, presenting a substantial social barrier.
Thus, free Black inventors were capable of patenting their inventions, despite the commonly adopted narrative that they were not inventive. However, patent rights for enslaved people were far more complicated. In fact, a slave owner named Oscar Stuart sought to patent the invention of his slave Ned. Stuart sent a series of letters asking the question: can a slave owner patent the invention of his slave? Next week’s blog will discuss the nature of the question and the unexpected answer of the attorney general, which temporarily altered patent rights for free and enslaved Black Americans alike.
[1] See Kara W. Swanson, BEYOND THE PROGRESS OF THE USEFUL ARTS: THE INVENTOR AS USEFUL CITIZEN, 60 Hous. L. Rev. 363 (2022).(“The purpose of the patent system provided in the U.S. Constitution is to “promote the progress” of the “useful arts”—“useful arts” being eighteenth-century parlance for what we now call technology.”)
[2] Frye, supra note 3 at 185 (“The Patent Office did not require patent applicants to disclose their race, so it typically did not know whether patent owners were African-Americans.”)
[3] Patent Act of 1793, Ch. 11, 1 Stat. 318
[4] Patent Act of 1800, Ch. 25, 1 Stat. 37
[5] Patent Act of 1836, Ch. 357, 5 Stat. 117, 121-22 (stating: “The applicant shall also make oath or affirmation that he does verily believe […] that he is the original and first inventor or discoverer of the art, machine, composition, or improvement, for which he solicits a patent, and that he does not know or believe that the same was ever before known or used; and also of what country he is a citizen;”).
[6] See Kara W. Swanson, They Knew It All Along: Patents, Social Justice, and Fights for Civil Rights, in The Cambridge Handbook of Intellectual Property and Social Justice, 208, 213 (Steven D. Jamar & Lateef Mtima eds., 2024)
Article by Mohammed Alzweiy