The United States of America has birthed a wide array of life-changing innovations throughout history. Inventions that came out of the United States quickly revolutionized people’s perception of life by making it efficient and fast. This necessitated the development of patent law so that the inventors could enjoy the exclusive rights to their inventions - the commercial reward for the time they did to bringing forth the product to life.
The narrative of American innovation has always excluded black people from the picture, and this was worsened by the patent laws which were designed to exclude black people who were born into slavery. Even for those who had bought their freedom (freedmen), it was not easy to acquire a patent. But that did not mean that there was a dearth of creativity and innovation among black people in the U.S.
African American slaves were denied patent rights, no matter the ingenuity of the product. At times, the white slave owners would steal some of the inventions brought to life by the slaves and would go on to become filthy rich. The struggle for a slave to be recognized as a full human being capable of creating unique inventions was a hard and protracted one for African Americans. Because of the harshness of the system – which refused to accept slaves as full citizens – some of the black inventors would collaborate with white people so that they could acquire patent rights and then share the business.
Slaves Were Not Regarded as Citizens
The patent system was premised on the idea that inventors were supposed to be in total control of the fruits of their intellectual labour for a certain period. Some state-specific patent laws existed before the issue of patents was fully incorporated into the American Constitution in 1787. The provision for protecting intellectual property read as follows, “Congress shall have power [...] to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
On face value, the provision seems to be race-neutral. But there were practical legal barriers that barred black inventors from reaping the benefits of the newly codified patent system. This was because the same constitution that recognized the need to issue patent rights did not treat slaves as full citizens. The laws at the time did not give black people exclusive property rights. It was impossible. Therefore, all the rights and duties espoused in the constitution were not conferred to black people born into slavery.
After 1793, the Patent Act was armed with a new provision – the “Patent Oath” –that required patent applicants to swear to be the original inventor of the claimed invention and to their country of citizenship. Since blacks were not citizens, they could not swear that they were the original inventors. In 1857, the Supreme Court, in what became known as the Dredd Scott opinion, ruled that black Americans were not and could never be citizens of the United States. The conditions of black people simply excluded them from enjoying the benefits of patent laws. The way to get a patent was through buying freedom or collaborating with a white capitalist.
The Black Inventors Who Were Denied Patent Rights
1. Benjamin Montgomery
Benjamin Montgomery was born into slavery in 1819. He invented a steamboat propeller specifically for shallow waters. The steam-operated propeller was a pivotal innovation – it facilitated the delivery of food supplies and other critical items. The propeller could cut into the water at different angles, which gave the boat room to navigate more easily through shallow water. It was not a new invention, but an improvement on similar designs created by John Stevens in 1804 and John Ericsson in 1838 (both white men received patents for the designs). Montgomery tried to acquire patent rights regarding the new steam-operated propeller but was denied by the United States Attorney General’s office on 10 June 1858. The reasoning was hinged on the fact that Montgomery was a slave and thus not a citizen of the United States. He was barred from applying for a patent in his name.
A black man named Ned invented an efficient cotton scraper and his slave owner named Oscar Stewart wanted to receive a patent for this invention. Stewart was denied the right to be the owner of the patent on the basis that he was not the original creator of the cotton scraper. But Stewart remained fervent in acquiring the patent. He wrote a letter to the Secretary of Interior Jacob Thompson, on August 25, 1858 proclaiming that “the master is the owner of the fruits of the labor of the slave, both manual and intellectual.” Slave owners were barred from claiming the intellectual results of their slaves, but black slaves could still not own any patent rights except if one had become a freedman. Stewart continued to use the invention as his and reaped huge profits from it.
3. Benjamin Bradley
Benjamin Bradley, whose correct surname was Boardley, developed a series of steam engines that ultimately resulted in him creating and building the “first steam-powered warship.” He worked as a helper at the U.S. Naval Academy and he developed an interest in experimenting with chemical gases. Professor Hopkins at the Naval Academy wrote of how Bradley loved experiments, how he was a quick learner and how he “looked for the law by which things act.” Bradley sold the first steam engine he built to Midshipmen – officers of the lowest rank in the U.S. navy. He used that money to build another one which he sold to a classmate at the Academy. He then used those proceeds to build the steam-powered warship. But because he was a slave, and thus not a citizen, he was barred from acquiring patent rights for this invention. He was only allowed to sell it. He sold the engine and finally managed to buy his freedom for $1,000.
Buy freedom, hold patent rights
On the face of it, freedmen were able to acquire patent rights. Thomas Jennings was the first black person to own patent rights, and that came in 1821 – 31 years after a white man in Philadelphia acquired the first American patent under the 1790 Patent Act for “An Improvement in the making of Pot ash and Pearl ash by a new Apparatus and Process.” Thomas Jennings owned the patent rights for his dry-cleaning methods. Norbert Rillieux, who was born a free man, patented his triple evaporation pan system in 1843 as a new, faster, safe, and efficient way to process and refine sugar.
Henry Boyd, who was born in slavery in 1802, managed to buy his freedom in 1826. He went on to invent a corded bed created with wooden rails connected to the headboard and footboard. It became known as the Boyd Bedstead and his business ultimately employed 25 white and black employees. Even though he had managed to salvage his status by purchasing his freedom, it was still difficult for him to acquire patent rights for the Boyd Bedstead. He eventually partnered with a white man who applied for the patent in his own name.
Professor Brian Frye noted, “obtaining a patent was difficult and expensive [for free black inventors]. Some inventors could not afford to patent their inventions or could not obtain legal assistance. Some inventions were not worth patenting. And some patent applications were rejected, possibly based on racial discrimination. Accordingly, some patent applicants concealed their race from the Patent Office, in order to avoid potential discrimination. And others used their white partners as proxies, for the same reason”
The distorted narrative
Innovation from African Americans has since proliferated under modern-day patent laws. It shows how the narrative was deliberately designed to exclude black inventors from having their intellectual works financially rewarded and recognized. It is clear that the white capitalist worked extremely hard to make it difficult for African Americans’ inventions to flourish. The warped legal system did not stop black people from being creative – they still managed to come up with innovative inventions despite the crippling legal system that forbade them from owning their creations and benefiting financially from them.