Patents are structurally not accessible for Black inventors and uphold divisions between the Human and the non-human.

Meanwhile, several scholars have taken up the calls of Brockman and Durack to consider patents as technical documents requiring rhetorical skill to navigate. In a separate article, Brockman details the challenges nineteenth-century inventor Oliver Evans faced in getting his patents renewed, demonstrating how Evans’s applications failed because of the language he used to describe his innovations (“Oliver Evans”). In his well-known study of Thomas Edison’s development of electric light, meanwhile, Charles Bazerman presents a successful patenting scenario, in which Edison and his companions wielded patents strategically in an effort to maintain their favorable position against competitors. As Bazerman argues, Edison’s skill with patents was inextricable from the “heterogeneous symbolic engineering” that makes up the rhetorical work of invention. Bazerman recognizes the outsized power of the patent within the early twentieth-century ecosystem of American innovation, observing that “patents sit on top of complex contexts, giving order, meaning, and certainty to arrangements of benefit to particular parties,” (239). To this ongoing discussion, I add a third, critical perspective that considers how patents, sitting atop these “complex systems” as Bazerman describes, have distorted our histories of both invention and technology, contributing to these systems’ well- documented gendering (Oldenziel) and racializing (Fouche) through their “arrangements of benefit to particular parties” (Bazerman 239). As I suggest, the genre as a whole functions, through the social acts it enables as well as through its features, to materialize and naturalize capitalist innovation rhetorics: particular ways of understanding, describing, and experiencing the means, ends, processes, and participants of innovation.

Patents, which Durack defines as “special grant[s] of monopoly power for a limited time in exchange for public disclosure of an invention” (491), have, since 1836, been conferred in the United States by a board of paid, full-time examiners trained to assess patent applications according to rigorous prearranged guidelines. At the time Baker was writing, these included two categories of analysis: usefulness and novelty.6 Then as now, patent examiners combed through previous patents for similar novelties, considering the specific language and illustrations used to describe both function and design in order to assess whether an idea [was] truly “novel.” Then as now, applicants had to attend very carefully to these documents. As Durack argues,

Authors of patents have . . . to anticipate and respond to important questions of interpretation from those charged with evaluating the appropriateness of granting or upholding patents: When is a technological change an invention, not just a minor improvement or obvious extension of existing technology? In what ways is the invention useful? How does the invention differ from the existing state of the art? (495)

From very early in the nation’s history, then, would-be inventors needed to possess not only technical skill, but also genre awareness and research and rhetorical skills. They needed a grasp of the “existing state of the art” of the field in which they were inventing, so that they could position their innovations as satisfactorily novel and useful in relation to preexisting patented innovations. In crafting the language used to describe their innovations, they—or the lawyers they hired to draft their docu-ments—needed to access and analyze potentially hundreds of previously successful patents for similar innovations to highlight differences and clarify claims to novelty. Additionally, applicants needed an awareness of the patent application genre, knowing, for instance, not to promote, but strictly to describe their inventions, and to provide a thorough description that attended fully to both the form and the function of the innovation, but did not require reference to illustration—even though the illustration was also required for submission. Pamphlets available from the USPTO and from patent lawyers helped applicants to navigate this challenge, but also may have discouraged some applicants through their intimidating tone and language. As one 1866 booklet circulated by Munn & Company, a prominent patent attorney’s office, advised:

In many cases it will be advisable, as a measure of prudence, to order a preliminary examination. This consists of a special search, made at the U.S. Patent Office, Washington . . . to ascertain whether, among all the thousands of patents and models there stored, any invention can be found which is similar in character to that of the applicant. On the completion of this special search we send a written report of the result to the party concerned, with suitable advice. Our charge for this service is $5.” (“The United States Patent Law” 6)

As this example suggests, with its reference to a “special search” of “thousands of patents and models,” obtaining a patent increasingly involved the services of a lawyer—a tacit requirement that demanded additional resources that many aspiring inventors may not have possessed and that racial discrimina-tion and the low numbers of Black patent lawyers likely discouraged. Fouche notes that “some black inventors initiated patent applications themselves because dealing with white patent lawyers or solicitors was usually far from amicable” (14).

The issue of cost was also a deterrent to patented invention, despite the United States’s much- touted relatively inexpensive patent system (Swanson 375). Whereas other nations’ patent systems used high fees to discourage frivolous patents, the USPTO offered relatively low fees to encourage easier application, on the assumption that incentivizing innovation would promote national prosperity (Swanson 365). Nevertheless, government application fees were not insignificant, at $35 by the time of Baker’s writing in 1913, or approximately $1,100 today (Wright 63). Additional money was required to reissue an expired patent, and lawyers charged fees for researching, drafting, and submitting the application, which approximately doubled the whole investment. For instance, one firm charged an additional $45 in agency fees (Wright 63), amounting to what would now be a $2,400 investment. Importantly, investing this money in a patent offered (then as now) no guarantee of profit, as a patent functioned merely as a “hunting license” allowing its holder to take legal action in cases of infringement. As Durack notes, a patent is “usually worthless . . . unless you also get the invention into widespread commercialization” (491). Thus, in addition to possessing rhetorical awareness of the patent application genre, inventors in Baker’s day needed to be able to absorb a significant financial risk in order to pursue a patent for their innovations—a difficult feat for most African Americans, who lacked access to capital because of not only discriminatory banking practices at the nation’s primarily White-owned banks, but the frequent violent seizing and destruction of Black-owned property and banks by White supremacists throughout the late nineteenth and early twentieth centuries. Additionally, although hypothetically an inventor might persuade a manufacturer to absorb USPTO fees and legal costs in exchange for the rights to manufacture the innovation, this course of action required business connections and fair treatment—both of which were in short supply for African American and other marginalized inventors. In short, then, patenting in the late nineteenth and early twentieth centuries was a lengthy process requiring both particular rhetorical skills and financial and human resources, without any certainty of success. Despite the aspirations of the USPTO to make patenting as universally accessible as possible, and despite the national celebration of its accessi-bility, obtaining a patent remained challenging for many would-be applicants, even as doing so increasingly materialized the myth of American meritocracy.

Despite—or perhaps because of— the challenges that submitting a successful patent application required, the patent system functioned in ways that both contributed to the high status of inventors within the American public imagination and cemented the link among invention, patenting, and ideal citizenship. As legal historian Kara Swanson argues, the USPTO’s strict systematic evaluation of patents elevated the status of the document itself, lending its awardees credibility in much the same way as a college degree might function. Swanson describes US patents as “a respected and recognized form of mobilizable social capital” that could be “used by patentees to change their position in the world in ways that [were] independent of the content of a patent and the commercialization of the claimed invention” (371). Because of the scrutiny of the system, patents functioned to certify not only an invention, but its inventor’s credibility as a worthy and “useful” citizen. In the United States, unlike most other countries, patent applications place special emphasis on the inventor’s originality. Whereas in Great Britain, for instance, one could apply for a patent of importation—a patent awarded simply for having brought an innovation into the nation for the first time (and not for having invented it)—in the United States, applications required certification of the inventor’s authenticity as “the first and true inventor” (Patent Act of 1790) of the invention. As the 1866 Munn & Company booklet advises:

It is necessary, in all cases, that an application for a patent should be made in the name of the inventor, and the petition and specification must be signed by him. An inventor may appoint an attorney, or may sell and assign all his interest in an invention; still the patent papers, on making the application, must be signed and sworn by the inventor; otherwise they will not be received by the Commissioner of Patents. (“How to Obtain a Patent” 13)

This provision, with its emphasis on the presence and consent of the inventor, contributed to the strength of the patent as a credential for its holder, as it affirmed the inventor’s ability to create something novel and useful. As Swanson notes, “[a] patent certified the originality and independent thought of the inventor, abilities defined as crucial for participation in democratic self-governance” (363). It is no wonder, then, that lists of patent holders were so widely circulated by the late nineteenth century, and that Baker lamented the special challenges of certifying the racial identity of inventors who submitted patent applications to his office. The strictness of “the first and true inventor” requirement bolstered the linkage between invention and full citizenship that was circulating in so many cultural arguments about the societal rights of African Americans, women, and other marginalized groups. It secured the patent as the only reliable genre through which one might reliably judge “true” invention to have taken place at all, and it affirmed the individualist notion that there could be one individual—one “first and true individual”—uniquely responsible for invention. In doing so, the patent naturalized not only a narrow view of invention that hinged on the patent itself, but also the values materialized through the patent: individualism, competition, profit, and linearity. That is, as the patent’s cultural status ascended in the nineteenth century, Americans came to fully conceptualize invention, not as the broad endeavor of manipulating the world to create new things, but as the pursuit of the ingenious individual in competition with others in seeking both profit and human progress understood in a strictly linear and future-oriented way.