“Anything But Colorblind” The Legal Barriers that Have Historically Prevented Black Inventors from Obtaining Patent Protection
Introduction
It should go without saying that the life of an entrepreneur is one filled with difficult legal considerations. In addition to tackling legal issues such as entity choice and raising capital, entrepreneurs have to think about how to protect any intellectual property associated with their business. For those entrepreneurs who are in the unique position of being inventors as well, seeking patent protection for their inventions often brings more problems than solutions.
According to the United States Patent and Trademark Office (USPTO), a patent for an invention is defined as “the grant of a property right to the inventor.” Essentially, with patent protection, the owner of the patent has a twenty-year exclusive monopoly on the right to make, use, and sell their invention. Out of the three federally registerable types of intellectual property, patent protection is often regarded as the most difficult to obtain, most expensive, and lasts the least amount of time. For the Black inventor, obtaining patent protection from the USPTO is made all the more burdensome because of the scars of legal barriers that have served to historically prevent them from receiving a patent, resulting in a major gap between race and patents. To truly understand this phenomenon in its entirety, we must look to the past and examine the legal history of Black inventors and the U.S. patent system.
The Patent Act of 1790
Serving as the first patent act passed by congress, the Patent Act of 1790 is considered by all accounts to be revolutionary because of its encouragement of innovation and industrial progress. The Act empowered the Attorney General and secretaries of war and state to grant patents of up to fourteen years for inventions that were “sufficiently useful and important.” Admittedly, the Patent Act of 1790 was rather socially progressive as well because it did not explicitly limit prospective patent applicants based on their race, age, religion, or nation of origin in the same way that other laws of the time did.
Unfortunately, for Black people, it really didn’t matter how socially progressive the Patent Act was, because the patent system and all of the rights and provisions granted in the Constitution were not available to the enslaved because they were not considered American citizens. In 1790, 92.14% percent of the Black population lived in slavery, and thus could not obtain patents at all, emphasizing that the Patent Act of 1790 was not made for the benefit of Black inventors.
Black Inventors in Early America
Being unable to obtain patent protection under the Patent Act of 1790, did not stop enslaved inventors from making inventions. In fact, there is evidence that both freed and enslaved Black people created inventions that greatly benefitted American society, even if white slave masters and other white men took credit for it.
For example, in 1825, an Alabama slave named Hezekiah invented a machine for cleaning cotton. In 1839, a North Carolina slave named Stephen Slade invented a method of curing tobacco that enabled the creation of the modern cigarette. It has also been suggested that the famous cotton gin was conceived by an enslaved man named Sam, but was patented by Eli Whitney, who became revered as a great American inventor. Some freed Blacks found great success with their inventions, such as Thomas Jenkins, who became the first Black inventor to receive a patent for his dry-cleaning methods in 1821, and Norbert Rilleux, who received an incredible four patents pertaining to his sugar refining methods.
Even with the helpful inventions of Black inventors such as Jenkins and Rilleux, among many others, the U.S. patent system remained closed off to enslaved Blacks, and patents were scarcely obtainable for the small percentage of freed Blacks. Things only became worse in 1857 when the Supreme Court handed down the infamous Dred Scott decision and completely prevented Black inventors from obtaining patents.
Impact of the Dred Scott Decision
It is without a doubt, that the 1857 Dred Scott decision is one of the most heinous and crippling decisions on Blacks handed down by the Supreme Court. The facts of the case are as follows: Dred Scott was a slave in Missouri who resided in Illinois, a free state, from 1833 to 1843. Upon his return to Missouri, Scott filed suit in Missouri court for his freedom, claiming that his residence in free territory as a result of the Missouri Compromise of 1820, made him a free man. After losing his suit in Missouri court, Scott refiled in federal court, and the case eventually reached the Supreme Court. In a 7-2 decision, the majority held that a Black person whose ancestors were imported into the United States and sold as slaves, whether enslaved or free, could not be an American citizen, and therefore did not have standing to sue in federal court.
Without the protection of citizenship, freed Blacks were denied any rights and protections under the Constitution and were considered nothing more than property. The denial of citizenship was especially felt by Black inventors who could no longer apply at all for patents because of a 1793 revision to the Patent Act of 1790 that required an oath of U.S. citizenship by the inventor in order to apply. As a result of the Dred Scott decision, the patent system was closed off entirely to Black inventors for eleven years until the adoption of the 14th Amendment, which granted citizenship rights to anyone born in the United States.
Recent Studies Show Major Race-Patent Gap
Even though formal barriers to the patent system were removed with the abolition of slavery and the passage of the 14th Amendment, studies show the scars of the past are still effecting Black inventors today. In a recent study conducted on the race-patent gap, Michigan State University researchers, found that from 1976 to 2008, Black inventors were granted six patents per 1 million people, compared to 235 patents per 1 million for all U.S. inventors. In addition to the alarming race-patent gap disparity, the lack of Black intellectual property attorneys is also eye-opening. According to a 2017 study conducted by the American Intellectual Property Law Association, fewer than 2% of IP lawyers were Black. Lastly, a study conducted by the Information Technology and Innovation Foundation found Blacks, while making up 13% of the U.S.’s native born-population, comprised less than 1% of the U.S. born-inventors.
All three of these statistics demonstrate that the legal barriers of the past have continued to stand in the way of Black inventors and their accessibility to not only the patent system, but intellectual property law as a whole. In order to help to rebuild the Black inventor, we must first take a look at our history and come to terms with our nation’s large ignorance of the Black inventor, and the legal barriers used to bar them from obtaining protection for their inventions.
Sources:
https://www.bloomberglaw.com/bloomberglawnews/ip-law/X1LES00C000000?bna_news_filter=ip-law#jcite
https://www.dbllaw.com/blog/2020/05/26/intellectual-property-and-the-importance-of-trade-secrets/
https://www.harnessip.com/blog/2020/06/19/a-brief-history-of-patents-slavery-in-honor-of-juneteenth/
https://tpinsights.com/can-new-patent-policies-reduce-barriers-for-black-innovators/
Image Sources:
Image 1: https://www.csis.org/blogs/perspectives-innovation/rai-explainer-patents
Image 2: https://www.edn.com/us-patent-system-forms-april-10-1790/
Image 3: https://www.bloomberglaw.com/bloomberglawnews/ip-law/X1LES00C000000?bna_news_filter=ip-law#jcite
Image 4: https://www.newyorker.com/news/news-desk/dred-waiting-for-the-supreme-court