Counterstorytelling

Mitigating the costs of selective legal memory, the past teaches us, is a project already begun and one involving many voices and many lifetimes. Rather than pretend to solve the problem of law’s color line, I return to the particularity of my own responses to this case study.202 My first response has been this Essay, weaving stories of the past in ways calculated to reach the keepers and transmitters of law’s memories and seeking to use an uncommon angle—patent law—to make the color line visible and, thereby, a problem to be solved rather than the unquestioned status quo. I have recognized, too slowly, that our selective legal memory has allowed me to be repeatedly surprised by Ned’s accomplishment and those of the many other African American inventors, free and enslaved, who have been a part of our history at least since Africans landed in Jamestown in 1619.203 That surprise perpetuates the racism of low expectations that motivated Baker and the NAACP in 1913 to publish his pamphlet, and feeds implicit biases and explicit racism.204 By exclaiming with wonder at the tale of an inventive blacksmith, a black railroad engineer, or an African American beauty entrepreneur, I imply that there is reason to be surprised, as if a designated subset of U.S. citizens is not expected to invent, as if George Washington Carver, perhaps the only famous black inventor, was sui generis.205 It is my obligation to avoid perpetuating that surprise by positioning Ned and the broader history of African American inventivenessas coextensive with the history of American inventiveness in my teaching and writing, rather than as rare examples distinct from assumed whiteness of technology creation in North America.206 While Ned is only one of a myriad of such inventors—some of whose stories are known in much more detail—his story is particularly well suited to separating biological assumptions from the politics of racism in legal settings, since his invention resulted in Jeremiah’s opinion, which had a profound, if fleeting, legal consequence.207 A three-sentence opinion can slip easily into a syllabus. What I have learned from these storytellers about the stakes of remembering Ned is also causing me to rethink the stakes of current conversations about inclusivity and access to the patent system.208 Understanding patents as political facts is a new perspective for those of us trained in patent law. We are accustomed to evaluating the patent system on its ability to “promote the progress of [the] useful arts” by encouraging technological innovation through individual economic reward.209 In a world of corporate research, we consider the collective use of patents in portfolios and pools, but remain unaware of the continuing significance of patents as a collective resource for those advocating for group inclusion.210 Understanding patents as proof of a prized ability with political meaning adds new dimensions to analyzing the use and functioning of the patent system today. For I have realized that the political meaning of patents is also “something that is happening.”211 Patents remain potent symbols of individual ability as well as a collective source of national pride.212 The patent office provides space for and collaborates with the National Inventors Hall of Fame to honor and publicize American inventors, celebrating original thought.213 The United States government, led by the patent office, claims the significance of patents, in both number and quality, in demonstrating a characteristic of the United States people that distinguishes this country from the rest of the world, echoing Baker’s analysis that inventive skill is a valued contribution to the nation.214 Underscoring the continued link between patents and citizenship, patents collectively granted to immigrants are offered as evidence of their worthiness to join the United States community.215 Demonstrating participation in the patent system remains a way of claiming to be an American, fully within the borders of belonging. Recognizing this meaning and its stakes adds new urgency to the severe underinclusion of persons of color, particularly African Americans, in the patent system.216 Once we see patents as political facts, we can appreciate that the rate at which African Americans apply for and receive patents is more than just another data point in discussions of STEM education or the innovation economy, or a question of distributive justice, although it is all those things.217 The patent system both remains a means of reifying racial hierarchies and offers the opportunity to destabilize them.218 As the activists I have highlighted understood, that opportunity expands as the list of African American patentees grows. At a moment when the U.S. Patent and Trademark Office is requesting authority to collect data on the sex and race identification of applicants, remembering Ned, Jeremiah, and Oscar underscores the need for such data as a way to create such lists.219 It also provides an additional incentive to encourage participation by marginalized groups in the patent system, reminding us that doing so will renegotiate the borders of belonging in ways that reverberate far beyond patents. I recognize that many of the storytellers whose history I have excavated had no interest in technological innovation or patent office policy. Rather, their efforts were directed to questions of race and rights, of citizenship and belonging, and of the role of law in shaping American identity, providing an important reminder that such questions are answered in many places. They have taught me that law’s selective memory imposes costs on the work of understanding what the law is, how it is working, and particularly, where and how the fault lines of entrenched racism in the United States continue to disrupt our legal promises of equality and inclusion. They encourage me to shift back from “I” to a “we” that I imagine includes many who never think about patents but are interested in these overarching questions of law and society in order to suggest that we need to shift our attention in at least two ways. By looking across law’s color line, we can learn legal stories we need to understand. Further, we need to recognize that the borders of belonging are forged in all parts of law and its bureaucracies, not just in the regulation of physical borders and polling places, or in designated civil rights laws. Fundamentally, understanding over a century of remembering Ned’s story teaches us the political stakes of our participation in law’s memory, a present happening worth remembering.