April 06, 2021 INTELLECTUAL PROPERTY LAW

The Colorblind Patent System and Black Inventors

Shontavia Jackson Johnson

Innovation and inventing have been critical to America’s progress since its birth. These concepts were so important that the Founding Fathers wrote them into the first Article of the U.S. Constitution, authorizing Congress to give inventors exclusive rights to their inventions for a limited time. The Patent Act was one of the first pieces of legislation passed by the first U.S. Congress in 1790, and it revolutionized the global patent landscape.

The original law did not explicitly exclude certain races of inventors from participation in the patent system. There were, however, practical legal barriers that excluded the earliest black inventors in the United States from obtaining patents. The patent system simply was not available at that time to enslaved people—they were not considered American citizens, and the rights and provisions of the Constitution did not extend to them. In addition, states enacted laws that prevented enslaved people from owning any kind of property, presumably including patents.

For black inventors who were either born free or otherwise acquired their freedom, there were also legal barriers. After 1793, the Patent Act included a “Patent Oath,” which eventually required patent applicants to swear to be the “original” inventor of the claimed invention and to their country of citizenship. Arguably, free blacks were precluded from patenting their inventions by the U.S. Supreme Court’s 1857 Dred Scott opinion because they did not have a country of citizenship and presumably could not swear to the Patent Oath.

Early black inventors in a new America. Thomas Jennings in 1821 became the first black inventor to receive a U.S. patent for his dry-cleaning methods. Martha Jones, the first known black woman to obtain a U.S. patent, would not obtain one for her “Improvement to the Corn Husker, Sheller” until 1868; the first (white) woman had received a patent 59 years prior.

Norbert Rillieux revolutionized industry both domestically and abroad. Rillieux was born free in Louisiana in 1806 and studied engineering in France. He became the youngest person ever—at age 24—to serve as an applied mechanics instructor at L’École Centrale, a prestigious French institution. Rillieux received four U.S. patents related to sugar refining once he returned to America. His inventions transformed the industry, and he became the most celebrated engineer in Louisiana at the time.

These early inventors laid the groundwork for modern American inventors from all backgrounds, especially black inventors. Today’s black inventors do not face the same legal and societal hurdles to the patent system, and many have found significant success.

Modern black inventors in a maturing America. America’s ascent as the preeminent industrialized nation in the world was driven by the “golden age” of innovation and invention during the late 19th and early 20th centuries. Early black inventors were critical participants in the patent system during this time.

One of the most prolific inventors of the golden age was Granville T. Woods, a black man who received more than 60 patents in the fields of electricity and telegraphic communications. Born in 1856, Woods viewed invention as both a means to acquire capital to invest in future projects and a way to implement the modernization of America. Woods received his first patent in 1884 for a steam boiler furnace. His patented inventions included technology that improved trains, streetcars, and electrical communication systems.

Lewis Latimer was a premier black inventor at the end of the 19th century. Born free in 1848, Latimer learned about patent drafting as an office boy in a Massachusetts patent law firm. His inventions included toilet systems for railroad cards, carbon filament light bulbs, and the threaded light bulb socket. Latimer worked with some of America’s most well-known inventors, including Alexander Graham Bell and Thomas Edison. His work transformed the way Americans lived and worked at that time.

In the 20th century, other black inventors helped make Americans safer. Garrett Morgan received patents for what would become the gas mask in 1914 and the traffic signal in 1923. Charles Richard Drew, a doctor in Washington, D.C., invented a method for preserving human blood in 1942. Drew’s work saved thousands of lives during World War II, and he became the founding medical director of the American Red Cross Blood Bank. Marie Van Brittan Brown invented the first home security system and obtained a patent for it in 1969. Brown’s invention allowed a homeowner to see a person at the door and hear their voice on a television set that was controlled by a wireless radio system.

Other black inventors created new ways for people around the world to enjoy themselves. Dr. Lonnie Johnson invented the number-one-selling water toy of all time: the Super Soaker water gun, which is approaching $1 billion in sales.

Other modern American inventors have used their inventions to serve the world as humanitarians. Dr. Patricia Bath, an ophthalmologist and academic, received multiple patents related to cataract treatment between 1988 and 2003. The technology she invented, including the Laserphaco Probe, is used around the world to painlessly treat cataracts.

Marian Rogers Croak currently holds more than 135 patents primarily related to voice over Internet protocol (VoIP) technology, which paved the way for Skype. Croak spent more than 30 years at AT&T, where she managed 2,000-plus engineers and led AT&T to replace wired communications with Internet protocol. She currently serves as a vice president of engineering at Google, where she is responsible for Google’s global expansion of Internet access in emerging markets and elsewhere.

Unfortunately, the reality remains that black patentees are woefully underrepresented in America. There is no reliable data on the actual number and proportion of black American patentees because the U.S. Patent and Trademark Office does not currently collect demographic data about patentees. However, tangential and anecdotal research suggests that the rates are very low. For example, a 2016 study found that black Americans “apply for patents at nearly half the rate of whites.” Jessica Milli et al., Equity in Innovation: Women Inventors and Patents, Institute for Women’s Policy Research, 2016.

There are no easy answers to address these racial gaps. As some scholars have noted, any solutions are multifaceted, and their success will rely on the creation and success of other solutions. Some solutions include: (1) greater STEM exposure and education; (2) mentorship and social networking; (3) institutional changes in academia and industry so that black inventors have much-needed support; (4) greater exposure to inventors and innovation; (5) access to financial resources; and (6) public policy changes that prevent and remedy discrimination.

ABA SECTION OF INTELLECTUAL PROPERTY LAW

This article is an abridged and edited version of one that originally appeared on page 16 of Landslide®, March/April 2019 (11:4).

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Shontavia Jackson Johnson

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Shontavia Jackson Johnson serves as associate vice president for academic partnerships and innovation at Clemson University.