03/02/20

Patenting an Invention as a Free Black Man in the Nineteenth Century


Patenting an Invention as a Free Black Man in the Nineteenth Century

Kathleen Wills

During the nineteenth century, the view of property rights in patents generally fell into two camps: an inventor’s inherent natural right to protect their property versus a limited-term monopoly that the government grants inventors. In the period before the Civil War, known as the antebellum period, lawmakers either viewed patents in the first camp as securing rights which coincided with the natural rights philosophy, or the second camp believing patents were government grants of limited monopolies. Lawmakers found textual support for the concept that patents involve regulation of economic development within the Constitution, including the Contract Clause, Patent Clause, and Commerce Clause. The foundational principles of patent law were often mentioned in early Supreme Court opinions that ensconced property rights, often written by Justice Taney, and those opinions are still cited by courts to this day.

As the debates ensued over which camp of fundamental perspective of patent law should govern, free black men faced many challenges in their fight to patent their inventions. One challenge came from the 1790 Patent Oath, where applicants had to swear to be both the “original” inventors of the claimed invention and citizens of the United States. While black inventors could fulfill the first requirement of the Oath and swear to be an original inventor, black inventors could not fulfill the second requirement because, in the years between 1857 and the 14th Amendment, black people were not seen as citizens of the U.S. This issue of citizenship which challenged free black men in their pursuit to procure patent rights was decided by the Supreme Court in 1857 with Justice Taney’s opinion in Dred Scott v. Sandford (“Dred Scott”). Justice Taney held that neither slaves nor their descendants were citizens entitled to Constitutional rights. With the 1857 Dred Scott decision, free black men’s status and citizenship changed, altering their natural rights and privileges to property as guaranteed by the Constitution. Thus, the Supreme Court’s decision posed an immediate challenge to black inventors’ patent rights because, as non-citizens, they could not sign the Patent Oath. 

Despite the Dred Scott decision and the Oath’s requirement of citizenship, there is evidence of free black men who were able to obtain patents and records suggest black men obtained patents both independently and by partnering with white men. Henry E. Baker, known as one the most important chroniclers of black innovation, devoted his work as an Examiner at the Patent Office to discovering the identity of “colored inventors,” which he used to directly combat arguments that black men could not contribute to society to the same degree as their white counterparts.

Beyond Baker’s work, there is also evidence in newspaper articles from the early nineteenth century that white men often viewed and referred to free black men as “colored citizens.” This idea supports the theory that some free black men, who were viewed as citizens in certain states, submitted patent applications for their inventions to the Patent Office and still signed the Oath with its citizenship requirement. To understand the significance of these work, one must understand the role of citizenship and status as it affected inventorship in relation to the (1) Justice Story and Justice Taney dispute over the governing perspective of patent rights, (2) challenges of antebellum black inventors in patenting their inventions, and (3) political use of patents of black inventors by Henry E. Baker.

With recent patent law decisions today still citing from Justice Taney’s patent opinions from the nineteenth century, it is imperative that the historical context with which these opinions were written is understood. This Comment will address each aspect to patent inventorship laid out above. First, this Comment will discuss the evolution of property and patent rights as it was later used against the abolition movement of the nineteenth century. Second, this Comment will describe: (1) the importance of the inventions of free black men, and (2) the knowledge and strength that Henry E. Baker’s significant record keeping provided for the black community. Finally, this article will highlight the importance of understanding the complex historical context with which the patent laws of the United States developed because the Supreme Court continues to cite patent jurisprudence from the antebellum period without context of the intimate oppression to inventors’ property and patent rights.

101 J. Pat. & Trademark Off. Soc’y 206 (2019)

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