Invention of a Slave and the Ongoing Movement For Equal Justice

by Dennis Crouch

The Black Lives Matter movement, ongoing protests, and statements of alliance have given me new hope that our society and its institutions are ready to take another step toward equal justice.

In 1857, the US Supreme Court decided Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) and affirmed what various state courts had previously decided — that under the law, free (non-enslaved) black and brown people were not United States Citizens.

[A]s long ago as 1822, the Court of Appeals of Kentucky decided that free negroes and mulattoes were not citizens within the meaning of the Constitution of the United States; and the correctness of this decision is recognized, and the same doctrine affirmed, in 1 Meigs’s Tenn. Reports, 331.

Dred Scott.  The following year, the US Patent Office with support of the US Attorney General took action to enforce the law in a memorandum entitled “Invention of a Slave.”  The memo begins with its clear statement: “A new and useful machine invented by a slave cannot be patented.” Under Dred Scott, a non-enslaved people of color also lacked the requisite citizenship.  Two recent articles walk through these events: Brian L. Frye, Invention of a Slave, 68 Syracuse L. Rev. 181, 194 (2018) (historical analysis); Kara W. Swanson, Race and Selective Legal Memory: Reflections on Invention of a Slave, 120 Columbia Law Review 1077 (2020) (reflection on historical and ongoing impact, inter alia).  The decision actually frustrated slave owners and during the civil war, the patent laws of the Confederate States did allow for patenting of inventions by enslaved peoples – although all ownership rights would flow to their owners.

In many ways, the courts fit its slavery cases within the doctrines of property law.  Enslaved people were identified as property.   A third new article in this vein is not intellectual property focused but walks through many ways that these old slavery cases remain good law today. Justin Simard, Citing Slavery, 72 Stan. L. Rev. 79 (2020).

Prof. Swanson reflected on her personal journey with Invention of a Slave — a journey that fits many of our own constructs:

As a former patent attorney turned legal scholar, I first encountered Invention of a Slave as an appropriately forgotten opinion. I saw no relevance to my former practice or to teaching patent law. I thought of it as a minor piece of patent lore, remaining firmly within my legal mindset of sorting precedents into “good” versus “bad” law. Nothing in my background as a white American, trained in science, law, and history in majority-white institutions, led me to see it differently.

Swanson.  Although not originally relevant to her, Swanson began to wonder why the the document remained relevant to the African American community. She explains – “Invention of a Slave might be unread by lawyers, but the African American community and its white allies were encouraged to take a look if they needed further proof to understand why so few African Americans had patented inventions before Reconstruction.”  Swanson.  Reconstruction era Constitutional Amendments and the Civil Rights Act of 1866 ended the the prohibition on patenting by brown and black Americans. Still, Professor Swanson’s essay walks through a small sample of ongoing roadblocks and hurdles for patentees, patent examiners, and lawyers.  Jim Crow of the patent system.

In my own state of Missouri, and at my home institution the University of Missouri School of Law, it took the US Supreme Court to order us to admit a qualified African American student, Lloyd Gaines. State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938).  Even after that decision, the State determined that mixed race legal education would be so problematic that it opened a separate law school for non-white students. As for Lloyd Gaines, he disappeared in Chicago before starting law school. Here at the University of Missouri School of Law, we did not graduate an African American attorney until 1970.

25 thoughts on “Invention of a Slave and the Ongoing Movement For Equal Justice

  1. 5

    Thanks for this Dennis. I had no idea that racism also existed with patents.

    No idea.

    Sickening. Ghastly. Shameful. Abhorrent. Immoral. Un-American. Un-Godly.

    Words don’t do justice.

    Do SCOTUS and the Federal Circuit realize the out-sized damage they’re causing to those inventors and minority-owned businesses who are least able to prevail against the un-Constitutional Alice and Mayo decisions?

    To those least able to protect and obtain financing for their inventions?

    Congress: Where? Are? You?

    #BlackInventorsMatter #MinorityInventorsMatter

    1. 5.1

      If you believe the new gospel, that “big R” is built into Western civilization and nothing short of tearing everything down is going to be able to “fix” it.

    2. 5.2

      … but the good news is that there is efficiency to be had as both the new religion and the current animus against patent holders are both ‘anti-science.’

  2. 4

    We will look back on the decision to deny inventorship to AI, and authorship to non-humans in the same manner. The system has not learned from its mistakes.

    1. 4.1

      I think this will be more true when AI can freely consent to the disposition of its intellectual property.

      1. 4.1.1

        OSitA,,

        Your comment only gets half-way to a critical point.

        A critical point in the discussion (walked up to several times, but yet to be embraced fully on the merits), is what happens given the FACT that AI is NOT human and will
        F
        A
        I
        L
        at completing any number of avenues to be able to be deemed “inventor,” but at the same time cleaves a critical aspect of being an inventor in that a human is no longer legitimately the “conceiver.”

        We are (right now) at the door of a complex legal question, and it appears that NO ONE wants to open that door.

        At another blog, some incredibly intelligent person already provided background points drawing parallels from AI to slaves in the cleaving of “owning” an item, but lacking the personal conception point. See comment 23: link to ipwatchdog.com

  3. 3

    Swanson’s paper mentions (paraphrased here) that the apparent logic from PTO in that era was that the slave was not competent enough to execute an oath or a declaration, and therefore cannot be awarded a patent (in regards to Ned’s invention and his owner Oscar’s patent application therefor).

    Not equating the two situations here, and digressing a bit, but would that be a line of thinking/condition to determine if AI related inventions could list the AI entity as the inventor. Would an AI code competent to execute an oath/declaration?

    1. 3.1

      Let’s ask Siri…

  4. 2

    Two questions.

    1. “Under Dred Scott, a non-enslaved people of color also lacked the requisite citizenship.” This implies that in 1857, US citizenship was required for US residents to obtain a patent. Was that in fact the situation?

    2. “Here at the University of Missouri School of Law, we did not graduate an African American attorney until 1970.” In Missouri in 1970, was completion of a law degree sufficient for a person to refer to himself as an “attorney”?

    1. 2.1

      The patent act of 1836 provided (§9) that US patents could only be granted to US citizens or to resident aliens who had lived at least one year in the USA and who swore an oath attesting to their intent to be naturalized.

      link to patentlyo.com

      1. 2.1.1

        Thanks.

      2. 2.1.2

        From the text you linked to, that’s not quite right. The distinction appears to only determine the application fee, not eligibility.

        “… if he be a citizen of the United States, or an alien, and shall have been resident in the United States for one year next preceding, and shall have made oath of his intention to become a citizen thereof, the sum of thirty dollars; if a subject of the King of Great Britain, the sum of five hundred dollars; and all other persons the sum of three hundred dollars; ”

        1. 2.1.2.1

          “the sum of thirty dollars; if a subject of the King of Great Britain, the sum of five hundred dollars; and all other persons the sum of three hundred dollars; ””

          Subjects of king george absolutly blown out forever lolololol. Shoulda kept that one on the books (adjusted for inflation) just for old times sake!

          But as to your discussion, I’m guessing that slaves (and later former slaves) did not qualify as aliens, or perhaps “legally resident” didn’t apply?

          1. 2.1.2.1.1

            Now, instead of subjects of King George, it only applies to Gil Hyatt.

            1. 2.1.2.1.1.1

              +1 NOiP

              Anyone have the latest on Gil’s fight/s?

              Dennis?

              1. 2.1.2.1.1.1.1

                I would assume the NDVA Gilbert Hyatt mandamus suit against the PTO is being delayed, like so many other cases?

            2. 2.1.2.1.1.2

              Are we sure Gil Hyatt is not one of the subjects of King George?

              1. 2.1.2.1.1.2.1

                I’m pretty sure he’s american iirc, though he might be a loyalist to this day. Someone would have to ask him.

                1. IN spite of all of the PTO excess claim fees Gil must have paid for the thousands of claims he has added to his ancient applications being aged in PTO oaken barrels, he apparently had enough money to make it worth his while to move to NV to try to escape the CA tax police that chased him all the way to the Sup. Ct. If he was a U.K.er he could have moved to the U.K. tax-dodger havens of the Channel Islands or the Isle of Man.

          2. 2.1.2.1.2

            > But as to your discussion, I’m guessing that slaves (and later former slaves) did not qualify as aliens, or perhaps “legally resident” didn’t apply?

            I find it interesting that the Patent Act of 1836 used the phrase “all other persons”, which in the U.S. Constitution referred specifically to enslaved people (See Article I, Apportionment Clause “three-fifths of all other Persons”). If the reference was intentional, that intent was ignored.

            I also find it interesting that excluding slaves from inventorship was probably a well-intentioned attempt to prevent slaveowners from profiting from their slaves’ inventions. However, the unfortunate legacy is that we lack a record of the inventiveness of African-Americans of the time.

            1. 2.1.2.1.2.1

              “I also find it interesting that excluding slaves from inventorship was probably a well-intentioned attempt to prevent slaveowners from profiting from their slaves’ inventions.”

              Wut? Where you getting that from? Are you from mars or something? Pretty sure there were no supremely well intentioned towards slaves white people (as we would consider them today all just a bunch of the dirtiest racists around) in the gubmit until well into the 20th century in so far as my history reminds me. Certainly not enough of them in gubmit to make such a gesture legislatively to prevent the owners from profiting. Even today you have congress (supposedly in its not nearly as racist form compared to yesteryear) wanting to increase the numbers of patented inventions by individuals who are non-white WITHOUT putting any measures in place to stop the evil ones from just being the ones that benefit ultimately thereby letting the little boost just end up mostly benefiting the upper/rich class (here we will presume that this is “the evil ones” even though they’re obviously not nearly all white).

              1. 2.1.2.1.2.1.1

                > Wut? Where you getting that from?

                The idea is partly implied by what Dennis wrote: “The decision actually frustrated slave owners and during the civil war, the patent laws of the Confederate States did allow for patenting of inventions by enslaved peoples – although all ownership rights would flow to their owners.”

                Also, Prof. Frye seems to believe that it is true as well:

                “Holt’s response echoed but inverted the Supreme Court’s recent and highly controversial Dred Scott opinion, which issued on March 5, 1857. In Dred Scott, the Supreme Court held that African-Americans could not be citizens of the United States, so slaves lacked standing to sue for their freedom in federal court. Holt presumably applied the logic of Dred Scott and concluded that if slaves could not be citizens of the United States, then they could not take the patent oath, and slave owners could not patent the inventions of their slaves. In other words, Dred Scott denied citizenship to African-Americans in order to help slave owners claim ownership of their slaves, but Holt applied the logic of Dred Scott in order to prevent slave owners from claiming ownership of the inventions of their slaves.”

                Brian L. Frye, Invention of a Slave, 68 Syracuse L. Rev. 181 (2018) at 194. (Note: The US Attorney General’s opinion/memorandum “Invention of a Slave” merely agreed with Holt’s opinion and reasoning.)

            2. 2.1.2.1.2.2

              “I also find it interesting that excluding slaves from inventorship was probably a well-intentioned attempt to prevent slaveowners from profiting from their slaves’ inventions.”

              Wut? Where you getting that from? Are you from mars or something? Pretty sure there were no supremely well intentioned towards slaves white people (as we would consider them today all just a bunch of the dirtiest ra cis ts around) in the gubmit until well into the 20th century in so far as my history reminds me. Certainly not enough of them in gubmit to make such a gesture legislatively to prevent the owners from profiting. Even today you have congress (supposedly in its not nearly as ra ci st form compared to yesteryear) wanting to increase the numbers of patented inventions by individuals who are non-white WITHOUT putting any measures in place to stop the ev il ones from just being the ones that benefit ultimately thereby letting the little boost just end up mostly benefiting the upper/ri ch class (here we will presume that this is “the ev il ones” even though they’re obviously not nearly all wh ite).

  5. 1

    NPR’s “Planet Money” recently did a segment on the rates of post-reconstruction patenting by African-Americans. Probably not their best material, but perhaps worth mentioning under this post.

    link to npr.org

    1. 1.1

      The paper discussed is here: link to lisadcook.net

      It’s big conclusion is African-American patenting hit its per capita high water mark in 1899, and has not recovered since.

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