The Colorblind Patent System and Black Inventors

AuthorShontavia Jackson Johnson
PositionShontavia Jackson Johnson serves as associate vice president for academic partnerships and innovation at Clemson University. She has also founded the Johnson International Group, a consulting firm specializing in law, pop culture, and innovation. She can be reached at www.shontavia.com.
Pages18-66
Published in Landslide® magazine, Volume 11, Number 4, a publication of the ABA Section of Intellectual Property Law (ABA-IPL), ©2019 by the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Innovation and inventing have been critical to America’s
progress since its birth.1 These concepts were so important
that the Founding Fathers wrote them into the rst Article of
the U.S. Constitution, authorizing Congress to give inventors
exclusive rights to their inventions for a limited time.2 The
Patent Act was one of the rst pieces of legislation passed by
the rst U.S. Congress in 1790, and it revolutionized the global
patent landscape.3 By the end of the 1800s, America had cata-
pulted itself to the top of the world’s economic food chain, and
the U.S. patent system was one of the reasons why.4 Inventors
with access to this system were, and still are, uniquely posi-
tioned to quite literally change the world.
From inception, our patent system recognized that American
progress needs inventors and that inventors should own the fruits
of their intellectual labor for some period of time when certain
requirements are met. On paper, these constitutional ideals have
always applied equally to the demographic tapestry of Ameri-
can inventors. The original law did not explicitly exclude certain
races of inventors from participation in the patent system, unlike
some of the other laws that existed at that time. 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 citi-
zens, and the rights and provisions of the Constitution did
not extend to them.5 In addition, states enacted laws that pre-
vented enslaved people from owning any kind of property,
presumably including patents.6
For black inventors who were either born free or other-
wise 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 ‘orig-
inal’ inventor of the claimed invention and to their country
of citizenship.”7 The U.S. Supreme Court’s 1857 Dred Scott
opinion held that black Americans could not be citizens of
the United States.8 Arguably, free blacks were precluded from
patenting their inventions after Dred Scott because they did
not have a country of citizenship and presumably could not
swear to the Patent Oath.9 Even after the Dred Scott opinion
was superseded by the Thirteenth and Fourteenth Amend-
ments after the Civil War, “the economic and educational
conditions that many free blacks faced . . . simply were not
conducive to pursuing whatever incentives and opportunities
U.S. patent law provided.”10
Shontavia Jackson Johnson serves as associate vice president for academic partnerships and innovation at Clemson University. She has also
founded the Johnson International Group, a consulting rm specializing in law, pop culture, and innovation. She can be reached at www.shontavia.com.
The Colorblind Patent
System and Black Inventors
By Shontavia Jackson Johnson
Dr. Lonnie Johnson is an American inventor and engineer who
holds more than 100 patents on everything from toys and consumer
products to advanced energy devices and methods.
Published in Landslide® magazine, Volume 11, Number 4, a publication of the ABA Section of Intellectual Property Law (ABA-IPL), ©2019 by the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
U.S. Navy photo by John F. Williams/Released
Published in Landslide® magazine, Volume 11, Number 4, a publication of the ABA Section of Intellectual Property Law (ABA-IPL), ©2019 by the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
There was and continues to be a consistently wide gap
between the colorblind American patent system and certain
groups of inventors, especially black inventors.
This article will highlight black inventors from America’s
inception to now. It will also highlight past and present barri-
ers faced by black inventors.
Early Black Inventors in a New America
Three months after President George Washington signed
the Patent Act in April 1790, Samuel Hopkins, a white man
from Philadelphia, received the rst U.S. patent for “an
Improvement in the making of Pot ash and Pearl ash by a
new Apparatus and Process.11 It would be 31 years—1821—
before Thomas Jennings became the rst black inventor to
receive a U.S. patent for his dry cleaning methods.12 Mar-
tha Jones, who is the rst known black woman to obtain a
U.S. patent, would not obtain one for her “Improvement to
the Corn Husker, Sheller” until 1868,13 while the rst (white)
woman received a patent 59 years prior in 1809.14
These gaps show the reality of the times—black inven-
tors faced signicant barriers whether free or enslaved.15 This
did not, however, kill their inventive spirit. People who were
enslaved served as prolic inventors on Southern plantations.
For example:
At the turn of the nineteenth century, a Kentucky slave invented
the hemp brake. In about 1800, a Massachusetts slave named Ebar
invented a method of making brooms out of corn stalks. In about
1825, an Alabama slave named Hezekiah invented a machine
for cleaning cotton. In 1831, a Charleston, South Carolina slave
named Anthony Weston invented an improvement on a thresh-
ing machine invented by W.T. Catto . . . . And in 1839, a North
Carolina slave named Stephen Slade invented a method of curing
tobacco that enabled the creation of the modern cigarette.16
These unsung inventors never obtained patents or the
nancial gains of their inventions—though slave masters and
other white men often did. Some would take undue credit for
these inventions and/or secretly patent the inventions them-
selves, ignoring the true inventors.17
For example, there have long been suggestions that the cot-
ton gin was actually conceived of by an enslaved man named
Sam, not Eli Whitney, who is revered as one of America’s great
inventors.18 In addition, not long after the invention of the cot-
ton gin, plantation owner Cyrus McCormick received a patent
for another invention that transformed farming and made him a
multimillionaire—the mechanical reaper.19 Today, most people
also attribute the reaper’s invention to Jo Anderson, an enslaved
man owned by the McCormick family.20 As a society deeply
entrenched in slavery during this time period, these kinds of
events were not uncommon.21
Some enslaved inventors did, however, acquire signicant
wealth. One quintessential example of early American inge-
nuity is the story of Benjamin Montgomery, who was born
into slavery in Virginia in 1819 and later sold in Mississippi to
Joseph Davis, the brother of Jefferson Davis. While enslaved
in Mississippi, Montgomery invented a certain type of boat
propeller with signicant utility for those who depended on
steamboats to deliver goods along the waterways.22 Montgom-
ery could not receive a patent for the invention as he was a
slave and not considered a citizen. Nonetheless, Montgomery
found success. He operated a general store on the plantation,
built relationships, and continued to innovate. He eventually
earned enough money to purchase his wife’s freedom. After the
Civil War ended, he also purchased the plantation he worked
on as a slave and became one of the wealthiest planters in Mis-
sissippi. This positioned his son, Isaiah Montgomery, to found
Mound Bayou, a successful African American enclave in Mis-
sissippi in the early 1900s.23
During these early American years, free black Americans
were also inventing and contributing to the country’s transi-
tion into a land of innovation. Thomas Jennings, the rst known
black patentee, was born free and successfully patented a dry
cleaning method in 1821.24 This proved to be lucrative for him,
as the ability to exclude others from making and selling his
invention led Jennings to own one of New York City’s largest
clothing stores.25 His success was passed along to his children,
who all were successful in their professional pursuits.26 In addi-
tion, Jennings’s accomplishments extended far beyond his
children—he used the prots from his patented invention to free
the rest of his family from slavery.27 His invention also improved
the quality of life for customers and sparked later innovation that
created the dry cleaning industry we are familiar with today.28
Another black inventor, Norbert Rillieux, revolutionized
industry both domestically and abroad. Rillieux was born
free in Louisiana in 1806 and studied engineering in France.29
Because of his intelligence, he became the youngest person
ever—at age 24—to serve as an applied mechanics instructor
at L’École Centrale, a prestigious French institution.30 Ril-
lieux ultimately applied for and received four U.S. patents
related to sugar rening once he returned to America.31 His
inventions transformed the industry, and he became the most
celebrated engineer in Louisiana at the time.32
Legal barriers
excluded the earliest
U.S. black inventors
from obtaining
patents.

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