Eric Boyer

Patent Seminar Paper

Stuart’s Invention, Ned’s Death

The U.S. Patent System & Antiblackness

The relationship between the development of the U.S. Patent System and racial slavery to

date has been underexplored. The standard rationale for patent law is that it promotes innovation

and technological progress. The public is gifted with an invention in exchange for the patent

right to exclude. The conventional rationale for granting legal protection to inventions as to

expressive works is the difficulty that a producer may encounter in trying to recover his fixed

costs of research and development when the product or process that embodies a new invention is

readily copiable. A new product, for example, may require the developer to incur heavy costs

before any commercial application can be implemented, so that a competitor able to copy the

product without incurring those costs will have a cost advantage that may lead to a fall in the

market price to a point at which the developer cannot recover his fixed costs.1

Lemley argues the three basic theories of patent law fail to account for the realities of

innovation.2 He chronicles the following pioneering inventions, and their patent owners: Robert

Fulton & the steamboat; Eli Whitney and the cotton gin; Samuel Morse and the telegraph; Elias

Howe and the sewing machine; Alexander Bell and the telephone; Thomas Edison and the light

bulb; Thomas Edison and the movie projector; Ford and the automobile; The Wright brothers

and the airplane; Guglielmo Marconi and the radio; Philo T. Farnsworth and the television; the

1
William M. Landes & Richard A. Posner, The Economic Structure of Intellectual Property Law 294

(2003);

2
Mark A. Lemley, The Myth of the Sole Inventor, 110 Mich. L. Rev. 709 (2012). Available at:

https://repository.law.umich.edu/mlr/vol110/iss5/1
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computer; lasers (1957); and polymer chemistry (1982). Given the proximity of black life to US

pioneering inventions I’d like to re-explore that premise.

The historical lessons are summarized by Lemley as the following: “an invention is a

social phenomenon, not driven by individual inventors; central control of pioneering inventions

by one patent owner generally results in reduced improvement and delayed commercialization; a

patent system needs to encourage the diffusion of knowledge but currently is not set up to do so.

The incentive to invent story is complicated by most inventions having simultaneous inventors

the fact that competitors are working to capture the same subject matter via patent. In other

words, granting a patent to the first inventor structures a culture between inventors engendering a

patent race theory.3 The object of desire (an invention for the public) is now split between desire

to possess patent rights and the apprehension of economically productive knowledge (a

patentable invention).

In this paper I will explore the (non)relationship between antiblackness and the U.S.

Patent System. Part I will introduce the relationship between US chattel slavery and the U.S.

Patent System. I ask how have patent law scholars figured the slave in our current understanding

of The U.S. Patent System—including its development and value. Part II asks what does the

recent Invention of a Slave—introduced to the patent discourse provided by patent scholars

Professor Frye and Professor Swanson—add to what has or has not been explored. 4 Professor

Swanson adding to Frye's analysis shows that at least within patent law the black inventor is an
3
Mark A. Lemley, The Myth of the Sole Inventor, 110 Mich. L. Rev. 765 (2012). Available at:

https://repository.law.umich.edu/mlr/vol110/iss5/1

4
see Bryan Frye, Invention of a Slave, 68 Syracuse Law Review 181 (2018); Swanson, Kara W., Race and

Selective Legal Memory: Reflections on Invention of a Slave (January 14, 2020). 120 Columbia Law Review 1077

(2020), Available at SSRN: http://dx.doi.org/10.2139/ssrn.3519398”

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object not a subject.5 I will argue that this black inventor affects the U.S. Patent System through

Professor Lemley’s “Myth of the Sole Inventor”.

I. The Patent, the Inventor, the Invention & the Slave: The U.S. Patent System and the

condition of Racial Slavery

Slavery and the Patent system both predate the United States. Slavery is a centuries old

condition. Racial slavery in Western civilizations was facilitated by “the Middle Passage” in the

beginning in the 1400’s. Similarly, the patent system can be traced back to at least the 1400‘s.

Both operate on the logic of possession. For racial slavery it’s the Black body. For the patent

system it’s the invention (fueling economically productive innovation). Today racial slavery has

been legally abolished. On the other hand, the patent system continues to grow stronger. My

question is what affect if any did Racial Slavery have on the patent system (both past and

present) and what effects does the patent system have on Blacks and vice versa.

One of the purposes of the U.S. Patent System was to encourage the development of

more efficient agricultural and manufacturing technologies to address the labor shortage caused

by the US’s rapid expansion Westward during the 19th century. 6 The patent office became a

nodal site of communication between the planters of the South who were interested in increasing

efficiency on their plantations, and the inventor class of the North who provided them with

improved inventions.7

6
Herbert J. Hovenkamp, “The Emergence of Classical American Patent Law,” Arizona Law Review 283-

282; see also Chauncey Smith, “A Century of Patent Law,” 5 The Quarterly Journal of Economics 44-69 (1890).

7
Bryan Frye, Invention of a Slave, 68 Syracuse Law Review 181 (2018); Herbert J. Hovenkamp, “The

Emergence of Classical American Patent Law,” Arizona Law Review 283-282.

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A. Slavery and Social Death

Slavery is and indicates an ontological status for Blackness. 8 The constituent elements of

slavery are not exploitation and alienation but accumulation and fungibility. In other words,

slavery is the condition of being owned and traded (and not positioned to freedom). The

experience of slavery is marked by: general dishonor meaning there are stigmatized in their

being prior to any transgressive act or behavior; natal alienation, meaning their claims to

ascending and descending generations are denied them; and gratuitous violence meaning they are

the objects of “naked violence.” Professor Frank Wilderson, a scholar of Critical Black Studies

defines Blackness: “Blackness refers to an individual who is by definition always already void of

relationality. [M]odernity marks the emergence of a new ontology because it is an era in which

an entire race appears, [black] people who, a priori, that is prior to the contingency of the

“transgressive act” (such as losing a war or being convicted of a crime), stand as socially dead in

relation to the rest of the world.”9 In modernity, ontological slavery becomes the singular

purview of the Black.

B. The Birth of the U.S. Patent System it’s relation to Blackness

The U.S. Patent System is a spinoff of other British Patent System. Prior to the birth of

the nation, individuals living in the 13 Colonies seeking to patents their invention would submit

their patent application to the British Patent System. The U.S. Patent System was inscribed in the

constitution, the Patent Act of 1791. The U.S. Patent System diverged from the British system in

8
Frank Wilderson, Red, White & Black p 18

9
Frank Wilderson, Red, White & Black p 18
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these ways: 1) the importance of the inventor and 2) the definition of patentable subject matter.

Both were shaped by slavery.

The United States Patent System engendered by the constitution in 1791 marks the

capitalist divergence of today’s international patent system from the previous Monarch directed

British patent system that anticipated it and from which the U.S. Patent System’s framers drew

inspiration and rebelled against. Unlike the British system where the crown’s interest’s drove

who received patents, the United States patent system was meant to be driven by the free market

derived from liberal ideals of the individual. The inventor in patent law is characterized as a

white male laborer toiling on their machine, and through a combination of perseverance and a

sudden stroke of genius introduce a new and useful invention worthy of a legal monopoly. The

Invention is so useful that it’s inventor shall be conferred a transferrable, limited time right

surrounding their invention in the US market.

Whether or not a putative inventor receives a patent is determined by patent examiners,

with the United States being the first nation to implement substantive examinations of patents in

1836 as a result of the 1836 act – a result of call for patent reform. The patent examiners operate

under the direction of the Commissioner of Patents housed in the United States Patent and

Trademark Office (USPTO), one of the first federal administrative agency. The USPTO is

conferred authority to issue patents to inventors by Congress. Prior to 1836, the Patent Acts of

1791 and 1793 required the grant of a patent be determined by 2 of 3 between Secretary of the

Interior, Secretary of War, and the Attorney General. The change from was necessitated by those

federal officials’ needs being placed elsewhere and call to have professionals within the

inventor’s respective fields determine whether an invention was worthy of granting a putative

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inventor with a patent. Patent examiners decision making process is structured by judicial

opinions, the state of the art, the MPEP, and USPTO, and the Patent Bar.

The Federal Government —essentially through USPTO, federal courts, and Congress—

facilitate the public’s interest in inventing by offering patents rights. Invention is not given its

standard meaning but is defined by statute conferred by Congress interpreted by the USPTO and

ultimately by federal courts bound to the Constitution which instructs Congress to “promote the

invention of useful arts by conferring a limited time monopoly to inventors.” Both the definition

of inventor and invention have been in flux since the beginning of the patent system. The

difficulty is in the abstract nature of invention. The courts and the USPTO (The Commissioner

and examiners) function to define what is and is not a patentable invention. Some of the

bifurcations of inventor versus not are—United States citizen versus foreigner and then citizen

versus not and now natural person versus not—and a patentable invention versus not are—new

versus anticipated, useful versus not, nonobvious versus obvious (to a person of ordinary skill in

the art), and embody a machine, process, or composition of matter. The aspiring inventor is

required to submit a patent application adequately describing the claimed invention and in

addition the application must include a signed and notarized oath from the inventor attesting to

be a citizen (depending on the Patent Act) and to ones own’s knowledge being the true and

original inventor. Finally the applicant is required to include a fee.

To entice the investment of capital, the patent system valorized the white laboring class

around capitally productive inventive activities, created a seamless transfer of inventors patent

rights from the inventor to their employers (corporations), and created a centralized place for

industry to vocalize it’s needs and wants. In addition, the USPTO was required to keep a log and

the courts were tasked in determining and enforcing those rights making patents commodifiable

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and fully alienated from their original delivery by monarchs. Finally, the examination process

increases the value of the patent because it ensures someone in the industry knowledgeable about

the industry and patent law reviewed the invention and deemed it worthy of a patent.

Industries interests are represented at every site.

- Examiners typically and preferably come from industry

- Patent attorney’s and agents are required to have a bachelors in STEM and typically

have experience in industry before law school

- The USPTO has historically been led by former industry executives

- Patent judges usually and preferably have STEM background

- Patent law litigation and judicial opinions are overwhelming decided between

corporate parties.

Interestingly, the United States is one of the few counties that values the individual

inventor with regards to the patent system. For examples the permanent equity rights provided

the inventor regardless if they are the patent owner. Second, prior to the most recent patent act,

the US maintained a first to invent instead of the typical first to file patent system expressing

value of the inventor. This is the result fo the importance of the individual liberties of man as the

US rebelled from Britain. The Boston Tea party is a prominent example of the rebellious spirit of

the American man. This spirit also included Taming the New World—land and it’s people—and

transforming it into a proper civilization. (ie Macintosh v case about discovery). So while land

grants (which I will explain in a moment) were given to future capitalists, other

individuals(characterized as extraordinary white male laborers) were endowed the title of

inventor. Inventors provided the nation with clout on the world stage and in turn, the inventor

was provided prestige and a transferrable patent right.

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Eli Whitney is the famous inventor and patent owner of the “cotton gin” and a perfect

figure to begin to explore the intimacy between the birth and development of US patent law and

racial slavery in the United States.

The United State’s grant of a patent reflects “the peoples” interest in the accumulation of

a particular type of space. That space must be: 1) unpossessed by citizens of another government

or people and 2) within the bounds of patent eligible subject matter as authorized by statute. The

applicant must 1) be an “American citizen” 2) submit evidence attesting to citizenship and the

required spatial requirements. Thus, a patent refers to a statute derived spatial monopoly granted

by the U.S. Federal Government. Without the potential reward of a patent. The Spatial

organization of Slavery and the Patent System can be traced through Invention of a Slave.

C. “Invention of a Slave”: Invention & Racial Slavery in the Antebellum

South

[United States Attorney General Jeremiah S. Black, Invention of a Slave, issued June 10,

1858]

SIR: I fully concur with the Commissioner of Patents in the opinion he has given on the

application of Mr. O. T. E. Stewart, of Mississippi. For the reasons given by the

Commissioner, I think as he does, that a machine invented by a slave, though it be new

and useful, cannot, in the present state of the law, be patented. I may add that if such a

patent were issued to the master, it would not protect him in the courts against persons

who might infringe it.

Very respectfully, yours, &c

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Patent Seminar Paper
J. S. Black10

The US Attorney General’s issuance of Invention of a Slave in 1858 barred free and slave

blacks from being listed as inventors on a US patent. Of central concern were racial slavery and

in particular the racial anxiety produced by the appearance of black mobility leading up to the

Civil War. Dred Scott, decided by the Supreme Court a year early in 1857 and this decision

belabored by the Secretary of the Interior, Attorney General, and Patent commissioner finds its

support in the Court’s complete denial of citizenship to all persons of African descent. 11

According to the Court, African blood, unlike non-black blood, belonged to no state.12

However, like Black’s 1858 decision he could have used the principle of agency to

overcome technicality that Stuart was not the inventor. Stuart would be Ned’s agent inverting the

master-slave legal relationship.Attorney General Black, serving under President Buchanan,

interpreted Dred Scott as barring all Blacks under the purview of the United States from

obtaining the title of “inventor” as recognized by the Nation via the bestowal of patents rights. 13

Professor Frye and Professor Swanson, two professors who have recently written about this

decision, have done a masterful recovery of Invention of a Slave by Attorney General Black.14

10
Invention of a Slave, 9 Op. Att’y Gen. 171, 171-72 (1858).

11
see Dred Scott v. Sanford, 60 U.S. 393 (1857)

12
Id. 457

13
Bryan Frye, Invention of a Slave, 68 Syracuse Law Review 181 (2018); Saidiya Hartman, Scenes of

Subjection (1997) (subjection is defined by Professor Saidiya Hartman as the violence imposed on the flesh of the

political subject).

14
Bryan Frye, Invention of a Slave, 68 Syracuse Law Review 181 (2018); Swanson, Race and Selective

Legal Memory 120 Columbia Law Review 1077 (2020).

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Additionally, Swanson, surveyed the history of the Black inventors and historians from the

context of recognizing the relationship between the Patent System, citizenship and belonging.

Yet today the Black is not any more positioned to become patent owners, patent inventors, patent

lawyers, patent judges, and most significantly not beneficiaries of our color blind Patent

System.15 Unfortunately, the “forgetting” Frye and Swanson, so aptly identified is still an all too

familiar reality of black life.16 Yet, at the same time, Blacks have impacted U.S. patent law in

surprising and unrecognized ways. In particular, I believe the affects of the Ned decision are still

being felt today. Invention of a Slave seems to have “blackened”17 the 19th century image of the

heroic inventor18 contributing to the rise of the corporatized inventor of the early 20th century

and leading perhaps to a future with no human inventor at all.19

By 1820 Pike county’s population consisted of 3,444 free people and 994 slaves.

Agriculture dominated the economy, though 55 people worked in commerce and industry. Over

the next few decades, Pike County’s population grew, primarily through an increase in the

number of slaves. Pike had 3,777 free people and 2,374 slaves in 1840; those numbers had

15
See Lisa D. Cook, “Inventing Social Capital: Evidence from African American inventors, 1843-1930,”

Explorations in Economic History 48 (2011); Patricia Carter Sluby, The Inventive;

Spirit of African Americans: Patented Ingenuity, at (2004)

16
See Bryan Frye, Invention of a Slave, 68 Syracuse Law Review 181 (2018); Swanson, Race and Selective

Legal Memory 120 Columbia Law Review 1077 (2020).

17
David Marriot, Wither Fanon, p 71 (blackened refers to the fundamental denotation of the black body

being that of a naturalized sexual aggression in which the body is either violating or violated.)

18
See Lemley, The Myth of the Sole Inventor; Mark D. Janis, Patent Abolitionism (2002)

19
See In re Application , (Thaler attempted to list an AI as the inventor on a patent application which was

rejected for the same reasoning Stuart’s patent application was rejected—the inventor must be a “natural person”).
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grown to 6,200 and 4,935, respectively, by 1860. Pike County’s farms raised cotton, livestock,

and corn, ranking in the middle in all categories. It ranked fourth in rice production and eighth in

orchard production.20

Ned had improved the cotton plow and scraper increasing efficiency two-fold in

comparison to existing plows in use. 21 Stuart saw the value of patenting Ned’s invention yet was

ultimately denied his individual liberty rights in the Invention of a Slave opinion decided by the

Attorney General, the Patent Commissioner, and the Secretary of the Interior. While following

the letter of patent law at the time, the Patent Act of 1848 allowed inventors more flexibility in

assigning their rights to corporation, the opinion spelled death for the slave-holding planter class

of the south and intensified the racial anxiety resulting in Civil War and the legal end of slavery

in the US.22 Given Invention of a Slave’s historical significance why is Invention of a Slave not

incorporated into our understanding of patent theory?

I am less convinced that Invention of a Slave’s does not matter. Instead, it’s repression

along with black life’s abjection may be to blame for Patent law theory’s inability to explain the

way the U.S. Patent System actually implements that law. The patent system fails to properly

name the significance of Invention of a Slave in shaping early patent law causing effects that are

still experienced by the patent system and more important by black life today.

The Invention of a Slave discourse begins in 1858 in the Lower Mississippi Valley

(“LMV”) when Oscar J. E. Stuart, a lawyer and planter of Holmesville, Mississippi, inherited

20
Mississippi History encyclopedia

21
Letter from Oscar J. E. Stuart to Jacob Thompson, Sec’y of the Interior (Aug 25, 1857) (on file with the

National Archives).

22
Chauncey Smith, “A Century of Patent Law,” 5 The Quarterly Journal of Economics 44-69 (1890).
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his deceased wife’s estate. His wife’s estate included an enslaved African, Ned, who, according

to Stuart, had invented a new and useful plow that he had hoped to patent. 23 The LMV was the

new South and made possible following the invention of the steam engine (which resulted in the

steamboat, and the steam engine train) as well as the cotton gin before it. The Nation’s expansion

to the LMV was necessitated by the destructive farming practices of the Virginia region which

had destroyed the land and fueled Manifest Destiny.24

Stuart hoped to capitalize off of the recent changes in the patent system which a decade

earlier made it possible for an estate owner to get a patent based on property they inherited. The

Patent Act of 1848 which didn't make any significant substantive changes to patent law did allow

for inventors to assign the rights to their patents which then could be extended for another seven

years which could be quite valuable commercially. 25 Stuart saw this as an opportunity to

commercialize Ned's invention which was embodied in the “Stuart Double Plow and Double

Scraper.” Of course, similar to John Deere in 1865, obtaining a patent was an important step in

commodifying Ned’s invention as it would prevent anyone else from making using or selling

Ned’s improvements until Stuart’s patent expired. In other words, Stuart would hold a legal

monopoly over Ned’s improvements to the plow. Before submitting a patent application for

Ned’s invention, Stuart requested counsel from Secretary of the Interior Jacob Thompson

regarding the Patent Act of 1836 and its oath of inventorship requirement. 26 What gave Stuart
23
Bryan Frye, Invention of a Slave, 68 Syracuse Law Review 181 (2018).

24
See S. Charles Bolton, “Fugitivism: Escaping Slavery in the Lower Mississippi Valley 1820-1860,”

(2019)

25
Chauncey Smith, “A Century of Patent Law,” 5 The Quarterly Journal of Economics 44-69 (1890).

26
Letter from Oscar J. E. Stuart to Jacob Thompson, Sec’y of the Interior (Aug 25, 1857) (on file with the

National Archives).
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pause and prompted him to write to the Secretary of the Interior before submitting his patent

application?

Reviewing the Patent Act of 1836, Stuart noticed that the inventor of the new and useful

machine was required to sign an oath attesting that they are the original and true inventor of the

patented invention and an oath of citizenship. 27 This relationship between citizenship and the

patent system was at least evident since the Patent Act of 1793 which repealed and replaced the

1790 Act.28 In the Patent Act of 1793 only citizens of the United States were authorized to obtain

a patent.29 It also required inventors to swear or affirm that they are the true inventor or discover

of the art machine improvement for which they receive an invention. Just seven years later the

Patent Act of 1800 amended the limitation of US citizenship to allow for noncitizens to obtain

patents.30 Finally, the Patent Act of 1836 repealed the Patent Act of 1793 but kept the inventor’s

oath of citizenship and attestation to true and original inventorship. In Stuart’s case, because Ned

was a slave, he could not claim citizenship to any country nor was he legally permitted to attest

to true and original inventorship in US federal court. Yet, Ned wasn’t attempting to obtain a

patent; Stuart was. The denials of Stuart the rights to his property would result in a monstrous

conclusion of the law. Stuart’s letter to Secretary of the Interior Jacobson in 1857 is reproduced

below:

Hon Jacob Thompson

Secretary of the Interior

27
Patent Act of 1836

28
Patent Act of 1790

29
Patent Act of 1793

30
Patent Act of 1800
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....

I wish to be informed if the Master of a slave, can procure a patent, for a useful invention

discovered by his slave. If he can will an affidavit as to the facts, to the best of his

knowledge and belief, be sufficient (the applicant, complying with the other requisites of

the law,) to authorise the issuance of the patents. (I can swear that it is a new invention so

far as I known and believe, and that it was constructed under my notice, the plan of it is,

that of the slave.) As a legal conclusion the master is the owner of the fruits of the labor

of the slave both intellectual, and manual; But from the phraseology of the law, if the

letter thereof is to gov-ern. The applicant would have to swear to the fact of the invention,

that the same was the contrivance of his own brain. And further the question may arise, as

to whether the invention should be, on the part, of one of the political, and not one of the

servile race. If this view of the case is adopted, the value of the Invention of a Slave to his

master is excluded, and the equal protection and benefit of government to all Citizens (in

the case given) is subverted. A negro smith belonging to the Estate of my deceased wife,

has invented a double Cotton Scraper, in front of which is attached two ploughs, to run in

the spaces between the ridges. The ploughs are attached to an Iron cross bar (an inch and

a half bar) with a shaft in the center, which is inserted in the beam of the plough. The

ploughs to be divided from each other from eight to thirty six inches, so as to correspond

with the size of the scraper the size of the ridge, and the width of the middles. Or spaces

between the ridges. The scraper is partly divided in front. The division space from 3 to 4

inches to correspond with the manner in which the cotton is planted in the drill. The

ploughs are supported by stays connected with the beam, a short distance behind the

blevin, and a stay from the centre of the beam, to the shaft, where it is welded to the cross

bar. And as many more stays may be added as any character of soil may require. A large

scraper, ploughs, and stock, will weigh on or about sixty pounds. And with it, one hand

and two horses can do the work of four hands, four horses and two single scrapers, and
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two ploughs. If I can procure a patent, I will file a petition with an affidavit setting forth

specially the circumstances of the invention, and forward on the other necessary proofs

and a model. If there is any particular form of petition adopted in the Patent Office, I

shall be pleased to receive the necessary blanks.

Please let me hear from you upon this subject.

Respectfully,

....

Oscar J.E. Stuart

P.S. Our planters who have seen the model are highly pleased with it, as a great labor

saving machine[.]31

Why would the Patent Act of 1836 require inventors to be citizens of a country? And why

would the Attorney General, Commissioner of Patents, and Secretary of the Interior hold up such

a monstrous conclusion against Stuart and the rest of the planter class?

The Invention of a Slave decision is at once tragic, for its holding, and striking in the way

that it in one fell swoop propels the notion of black people as inventors into the public

consciousness, a place where this idea seemingly had not been voiced before. . 32 The New-York

Daily Tribune and The National Era, abolitionist newspapers published an anonymous editorial

mocking Stuart’s failed attempt to patent Ned’s invention. 33 W.E.B. Du Bois, a national leader

31
Letter from Oscar J. E. Stuart to Jacob Thompson, Sec’y of the Interior (Aug 25, 1857) (on file with the

National Archives).

32
Bryan Frye, Invention of a Slave, 68 Syracuse Law Review 181 (2018); Cook, Violence and Economic

Activity; Swanson

33
Editorial, N.Y. DAILY TRIB., Dec. 17, 1858, at 4; see An Inventive Piece of Property, Nat’l Era, Jan. 13,

1859.
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for African American rights and an NAACP founder, included Invention of a Slave in the Crisis

—NAACP’s journal.34 Booker T. Washington, another famous Black leader, included the story

of Invention of a Slave in his popular African American history series, “The Story of the

Negro”.35 Further, Invention of a Slave was included in the first 8 editions of “The Year Book”—

intended to be an encyclopedia of African American life. The Year book was “the standard book

of reference” on race relations for many social scientists. 36 Moreover, Massachusetts Senator

Charles Sumner, a prominent white abolitionist, introduced a resolution in 1861 urging Congress

to amend the law to clarify the right of African Americans to secure patents. Not surprisingly, it

failed to pass.37

I’m most interested in the story of Ned the enslaved blacksmith who challenged the

stability of the US federal government leading up to the civil war. Yet endowing Ned with the

significance of “African American inventor” as Swanson does ignores the veil of slavery 38 and

34
Shawn Leigh Alexander, Introduction to Protest and Propaganda: W.E.B. Du Bois, The Crisis, and

American History 1, 2 (Amy Helene Kirschke & Phillip Luke Sinitiere eds., 2014); Gerald Horne, Preface to Protest

and Propaganda: W.E.B. Du Bois, The Crisis, and American History, supra, at ix.

35
See Booker T. Washington, 2 The Story of the Negro: The Rise of the Race from Slavery 77–78

(Doubleday, Doran & Co., Inc. 1940) (1909).

36
See Swanson, Race and Selective Legal Memory 120 Columbia Law Review 1077, 1096 (2020)

37
Charles Sumner, Denial of Patents to Colored Inventors, in 6 The Works of Charles Sumner 144 (1880);

Frye, ‘Invention of a Slave” at 224–25 (citing the Congressional Globe).

38
Jared Sexton and Sara Han, “The Devil’s Choice: Slavery and the Logic of the Vel” (Esoteric Lacan

2019)
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reproduces the social death39 of “Ned,” the negro Smith (yet again).40 Black life in relation to the

patent system is still as precarious as it ever was.

Invention of a Slave’s experience as forgotten as bad law or irrelevant history is not

unique, and I hope to trace black life’s precarious relationship to the patent system. Black life

remains beneficially absent yet proximal to the patent system’s subject matter (or desired space).

To begin I will illustrate the intimate relationship fostered between black flesh and the U.S.

Patent System since the patent system’s inception. According to Lemley, and I think he’s right,

the valorization of the U.S. Patent System is yoked to structuring patent races to address

problems of black mobility. Lemley summarized America’s pioneering inventions which

continue to make the patent system valuable; hidden in the frame is theslave as a minor figure--

either as an absented inventor or the subject of patent possession. 41 Let me briefly illustrate what

I mean below. I’m particularly interested in the relationships David Marriot describes as the

interstices between cultural phantasy (The lone white male inventor motif) and racial anxiety

(black mobility), and between abjection (the black flesh) and desire (TNCO 42 capture of life writ

large).

39
David Marriott’s uses social death to refers to

40
Swanson, Race and Selective Legal Memory at 1105 (2020).

41
Mark A. Lemley, The Myth of the Sole Inventor, 110 Mich. L. Rev. 709 (2012).

Available at: https://repository.law.umich.edu/mlr/vol110/iss5/1; The slave as a minor figure is a concept

used by Saidiya Hartman to emphasize that black(ened) people aree both absent yet essential to modernity. Supra

note 1.

42
TNCO refers to the Trans-National Capitalist Order. see Zakiyyah Iman Jackson, On Becoming Human.
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The cotton gin marks the inaugural pioneering invention of the U.S. Patent System

validating the system’s worth to the developing US body. 43 In 1794, four years after the birth of

the U.S. Patent System, New England native Eli Whitney obtained a patent on the cotton gin.

Within a short few years following Whitney’s patent’s publication the United States went from

the export of 138,000 pounds of cotton a year to 6 million pounds per year.44 Just two years prior,

Whitney had accepted the position of tutor on the Mulberry Grove plantation, to begin his study

of law. The plantation was owned by Catharine Littleton Greene, who inherited the estate from

her husband, Revolutionary War officer Major General Nathanael Greene. Greene had been

gifted the property by the state of Georgia for his role in the war. The cotton gin was vitally

important to the nation’s development as an international power it’s growing body politic and the

patent system. However, the invention of the cotton gin condemned thousands of Africans to

slavery as part of the Trans-Atlantic Slave Trade because it increased the need for bodies to plant

and pick the cotton the gin would process. 45

Robert Fulton’s Steamboat patent in 1811 signifies the patent system’s second pioneering

contribution. The steamboat New Orleans made a successful journey from Pittsburgh to New

Orleans. By 1818, 30 steamboats were operating in the LMV and by 1850 more than 700

steamboats were operating in the area. After departing New Orleans, the steamboat could be in

Natchez Mississippi in less than a day, Louisville in five days, and Cincinnati in eight days. 46

The Steamboat became a tool for fugitive slaves to disappear into New Orleans, escape to

43
Chauncey Smith, “A Century of Patent Law,” 5 The Quarterly Journal of Economics 44-69 (1890).

44
Sluby, The Inventive Spirit of African Americans p 13-15

45
Sluby, The Inventive Spirit of African Americans p 13-15

46
S. Charles Bolton, Fugitivism (2019)
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Mexico, or travel further into the continent to reconnect with family or less frequently to attempt

for freedom in the north. Interestingly, the Illinois central railroad in 1858 bypassing Holmesville

by 8 miles resulted in its decline and unseating in 1873 to newer towns connect to the railroad.

Thus, the steam engine mark and allow for a beginning and end historically for black antebellum

life in the periods surrounding Invention of a Slave.

Samuel Morse’s telegraph allowed slaves in TX to be made aware of Lincoln’s

proclamation that any slaves in the south who joined the north would get free and to allow the

Slaves of Texas to learn the same day Lincoln announced the emancipation proclamation.

Samuel Morse followed by the long line of inventors after him can be linked today’s risk

assessment algorithms.47

II. Patent Race Theory & the Black

Therefore, I ask how did the patent system shape racial slavery prior to legal

emancipation and how did racial slavery shape the current patent system? I’ll begin by

summarizing the three basic rationales for patent law in the United States which are: 1) to

incentivize innovation and technological progress or “Innovation theory”; 2) to facilitate the

commercialization of inventions or “Commercialization theory”; and 3) to promote the

dissemination of useful knowledge between inventors or “Disclosure theory”. As demonstrated

by Professor Mark Lemley, each of these theories revolve around The Myth of the Sole Inventor,

whereby patent law produces inventors (and thus inventions) that would likely not exist

otherwise. Popular examples of the sole inventor myth include Eli Whitney ( “cotton gin”) and

Thomas Edison (the light bulb).48 Lemley uses a historical approach to show that none of these

theories adequately capture the reality of patent law, namely that: 1)invention is a social

47
Chauncey Smith, “A Century of Patent Law,” 5 The Quarterly Journal of Economics 44-69 (1890).
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phenomenon not driven by an individual inventor, 2) centralizing control of early inventions

corresponds with reduced innovation and delayed commercialization, and 3) patent law is not

structured to efficiently facilitate the dissemination of knowledge between inventors.

Failing to find an adequate justification in the current patent law theories, Lemley, offers

patent racing theory, which posits that “patents encourage putative inventors to race to achieve a

result first, and that doing so gets us a greater variety of inventions more quickly than we would

have in the absence of patent protection.” 49 Patent protection at least functions to increase the

variety of inventions and the rate at which those inventions are produced. Patent Protection is

thus the

Lemley fails to distinguish the inventor from the corporation. He outlines how invention

is a social function. However, putative inventors are immediately alienated from their reward

(patent rights) via assignment to the corporation or research institution where they work. In

exchange the inventor(s) are payed the wage stipulated by their employment contract. (I think

some companies may give bonuses, but I know that’s not standard, and I remember Dan from

AbbVie was like him and the VP of Patents hated the idea.). The Courts and the Patent Office

have interpreted the patent act to mean only “natural persons” can be inventors notes “the point

of patent law is to encourage investments in research and development that wouldn’t otherwise

be made.” p 58 Thus, if patent law incentivizes investment in research and development by

conferring inventors with patent rights, with respect to incentive, the inventor becomes

indistinguishable from the corporation. In other words, patent law motivates invention by

motivating corporations (mainly via capital investment in R&D)

48
Lemley, Eli Whitney was not the first mechanized cotton gin in use and Thomas Edison only improved

the light bulb using a bamboo filament already in use at the time.

49
Lemley, Myth of the Sole Inventor pg 62
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Standard economic theory holds that racing to develop a new invention and racing to get

an invention to market is a wasteful exercise.

1. If two or more putative inventors invest that money in R&D in an effort to beat each

other to the market, all but the first to invent will have wasted that money.

2. In racing the putative inventors may overspend in hopes of getting the pioneering patent

negating the economic value

If patent racing theory does not seem distinct from the commercialization theory then

why does Lemley displace commercialization theory with patent racing theory? Lemley

recognized classic economic theory’s position on the wasteful effects of racing theories generally

but seeks to distinguish patent racing theory with racing theory because the excess produced by

the patent system is outweighed by the “substantial benefits [to the world].” 50 Invoking [what’s

his name], patent racing similar to sports racing would make the individuals competing “run

faster than they otherwise would.” 51 In sum, a race to invent incentivizes inventors to file patent

applications sooner meaning patents publish sooner and the patent term of the first

inventor/terrible commercializer expires earlier. Based on the lessons of history we must ask

substantial benefit for whom and at what/who’s cost?

To be more precise Lemley presents his patent racing theory as distinct from the current

theories by re-presenting the individual inventor as a state produced structure of inventors

directed towards solving a common problem. I will use Lemley’s next articulation as a

springboard propel Invention of a Slave to its proper place within patent law theory and the

patent system more generally. Lemley illustrating his patent racing theory states:

50
Lemley, The Myth of the Sole Inventor

51
Lemley, The Myth of the Sole Inventor
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If the problem is powered human flight, for example, both airplanes and helicopters are

desirable solutions to that problem, even though—indeed, because—they differ in various

respects. The mere existence of two alternatives provides valuable competition, even if

the two are equally good.52

Why is powered human flight a problem? Moreover, why is it a problem that necessitates

a patent system? Finally, is it possible make sense of Invention of a Slave as the traumatic event

that reveals how the modern patent system was prefigured by the antebellum with a essential

functioning of preventing black human flight—black mobility. According to Lemley, patent

races are a good thing that drive innovation two dimensionally: in part by creating the hope of

reward of the patent (as commodity and as a legal monopoly) and in part by creating the fear of

losing a race to a competitor. While I agree that his patent racing theory meshes the realities of

innovation and canonical patent theory, I believe Lemley’s attempt to mask commercialization

theory as temporary bridge between theory and reality until something better comes along can be

properly characterized by what Frye and Swanson named the forgetting of Invention of a Slave.

What makes the decision so forgettable? Why does the decision Invention of a Slave Exists?

Hortense Spillers, in “Whatcha Gonna Do,” explains this as a problem of black invisibility in

theoretical discourse. Patent Law today is clearly no exception. 53 Tracing the symptom of racial

anxiety caused by black mobility and the patent system’s production of pioneering inventions;

Slavery prefiguration of Modern Patent Law continues to go unnoticed.

52
Lemley, The Myth of the Sole Inventor

53
Hortense Spillers, Jennifer L Morgan, Saidiya Hartman, Farah, “Whatcha Gonna Do”
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