Patents are racial artifacts rooted in Enlightenment logic – preserving them means continuing the legacy of slavery and racial supremacy

Anjali Vats, “The Color of Creatorship”, Stanford University Press, Pages 32-34, 2020

Michael Perelman and Lateef Mtima note that protectionist motives were evident across areas of intellectual property law, as were understandings that white plunder was an acceptable means of securing Manifest Destiny, global power, economic might, and domestic labor.23 Mtima further contextualizes this argument vis-à-vis national identity, writing “America’s leaders and populace were not overly concerned with the trivialities of foreign rights in intangible property, especially if such rights stood in the way of nation building . . . the misappropriation of a few stories and songs was hardly an affront to the national conscience.”24 In a time period when the Chinese were identified as part of a barbaric, machinistic, “Oriental” nation whose values were “incompatible with the United States and threatened to corrupt the nation,”25 and other racial groups were scripted in similarly racist ways, intellectual property’s legal and economic decisions were inseparable from whiteness itself. Despite formal equality, copyright law and conceptions of citizenship constructed a domestic and racialized version of Americanness, which privileged white intellectual properties using familiar and established racial scripts.

The story of race and citizenship in patent law is analogous to the story of race and citizenship in copyright law. The Patent Act of 1790, which was amended in 1793, afforded patent protection “upon the petition of any person or persons . . . setting forth that he, she, or they hath or have invented or discovered any useful art, manufacture, engine, machine, or device, or any improvement therein not before known or used.”26 As previously discussed, the architectures of slavery and racial hierarchy, including the Three-Fifths Compromise, formally dictated that slaves were not persons under U.S. law. While some white women and men of color, such as Thomas Jennings, managed to secure patents under the Patent Act of 1790, 27 only white men were guaranteed full rights as citizens and persons under the law. The Patent Act of 1836 retained the word “persons,”28 and accordingly the overt and inferential inequalities that came with it.

Into the 1900s, structural disadvantages coupled with deeply rooted prejudices continued to intersect with intellectual property formalities to prevent people of color from protecting their inventions in systematic ways, though once again not completely. As Rayvon Fouché and Sharra Vostral argue, “[E]ven into the mid-twentieth century, racial segregationists and women’s rights opponents used the paucity of patents by women and people of color as evidence of their inability to think creatively and contribute to an evolving technological nation.”29 This catch-22 severely and cruelly constrained the manner in which people of color could push for equal rights in the area of intellectual property and demonstrate their capacity to create. Those who had not shown themselves to be a historical part of human progress according to white yardsticks and legal regimes could not effectively demonstrate that they could be part of human progress in the future

Like copyright law, patent law is more than simply a legal construct. It is instead a rhetorical and cultural formation through which national identity and citizenship were and are constituted. The relationship of inventing to the developing nation’s very idea of itself and the American Dream points to the importance of patenting in mediating culture. As Dan Burk and Jessica Reyman contend, “patents play an important social role in industrialized societies.”30 Patents are certainly artifacts of technological society. They are also—as Fouché and Vostral, among others—demonstrate, artifacts of a racialized society. Brian Frye’s recent essay “Invention of a Slave” notes how decisions to patent or not to patent the inventions of enslaved persons implicated larger conversations about slavery, abolition, and territoriality in the nation.31 For instance, protecting the inventions of enslaved persons could be read as an endorsement of abolition, upsetting the balance between slave states and free states in the young nation.

That patents were explicit and implicit mediators of national conversations about citizenship, personhood, and slavery should not be surprising, particularly given America’s desire to articulate its identity around work ethic, ingenuity, discovery, and progress. The concept of “discovery,” as used here, has both material and immaterial implications. With respect to the latter, the nation’s quest for knowledge was part of a larger investment in Enlightenment narratives of linear progress. With respect to the former, the nation’s commitment to inventiveness was driven by and contributed to territorial expansion. Manifest Destiny relied on invention, specifically technologies that could make it possible to traverse the new nation. As such, “the idealism of Manifest Destiny would become entwined with America’s growing obsession with technological progress . . . whenever progress was invoked, technology was its basis.”32 In these respects, patents are sociolegal constructions with significant racial implications. Not only were many people of color denied the right to protect their inventions, they were viewed as obstacles to the nation’s inherent mission of advancing progress and civilizing the uncivilized.