Technology

Invention Of A Slave

The legal framework built to sustain slavery in America touched everything, including intellectual property.

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Today’s post isn’t about any current copyright or patent case, but instead covers an interesting historical issue regarding patents and slave inventors: Could a slave receive a patent? Could a slave owner patent the invention of his slave?

Thanks to Twitter, I recently came across a law review article by Brian L. Frye, “Invention of a Slave,” detailing the history of the ability of African-Americans — both those living in “free” states in the North, as well as slaves in the South — to obtain patents.

In 1858, the Attorney General issued an opinion, “Invention of a Slave” concluding that a slave owner could not patent an invention of a slave. The Attorney General concluded that the slave owner could not take the patent oath — because he was not the inventor — but neither could the slave — because a slave could not take the oath at all. Patentability during this period required an inventor to take a “patent oath” in which the applicant would swear to be the original inventor and to the country of citizenship.

One of the significant cases covered in Frye’s article is an attempt by Jefferson Davis — best known as President of the Confederacy — and his brother Joseph Davis, to patent the invention of one of their slaves. The Patent Office rejected the application.

The predicament in which neither slave nor slave owner could receive a patent is best surmised in Frye’s own words:

it illuminates peculiar contradictions in the ideology of slavery and its application. Slave owners justified slavery by denying the humanity and creativity of African-Americans, but still wanted to claim ownership of valuable inventions created by their slaves. They rationalized the contradiction by claiming that slaves were more creative than free African-Americans, implicitly characterizing slavery as humanitarian. By contrast, the Attorney General and the Patent Office relied on the ideology of slavery to prevent slave owners from patenting inventions created by their slaves, but ironically also prevented free African-Americans from patenting their inventions.

The article focuses on inventor Benjamin T. Montgomery, enslaved by Joseph Davis, who tried to patent a propeller for steamboats, but was denied due to his status as a slave. The propeller used angled blades, modeled after canoe paddling, resulting in less resistance and therefore greater power. The prototype created by Montgomery was powered by hand, with the intention that a model could be made powered by a steam engine. Jefferson and Joseph Davis tried to patent this invention, but were denied based on the fact that they were not the inventors. Montgomery, who was not considered a citizen of the United States based on a reading of the Supreme Court’s decision in Dred Scott, could not receive a patent either.

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Slave owners, of course, were outraged by the denial of the ability to patent the inventions of their slaves. The Confederate States of America ultimately formed its own patent office during the Civil War, which mirrored the United States’ patent office, with one notable distinction: it explicitly provided that a slave owner could patent the inventions of his slave.

Incredibly (or maybe expectedly?), slave owners tried to rationalize slavery by claiming that black slaves were more creative because of the humanitarian benefits of slavery. They asserted that free black men did not have the creativity to invent, but that slaves did. While I don’t need to go into how ridiculous and stupid this sounds, it shows how willing slave owners were to twist themselves into logic pretzels to promote slavery. Interestingly, the Confederacy’s change in patent rules didn’t seem to benefit slave owners since everyone was preoccupied by things like the Civil War.

Those living in free states received a more mixed reception, which appears to have depended on the year in which the inventor sought patent protection. Did the application come before or after the Supreme Court’s Dred Scott decision? A patent application does not require the applicant to disclose his race and the historical record detailed by Frye reveals several patents held by free antebellum African-Americans including Thomas Jennings (for a method of “dry scouring” clothes), Robert Benjamin Lewis (a machine for “Dressing flax and hemp” and a “brush for whitewashing,” among others), Henry Blair (a seed planter and cotton-planter), among others. While the Patent Office did not require disclosure of race, at least one Patent Office Digest noted that one patent owner (Blair) was “colored.” At least pre-Dred Scott, it appears that the Patent Office issued patents to free African-Americans and that race may not have been an issue. Post-Dred Scott, the decision in which the Supreme Court ruled that descendants of slaves, even if they were free men rather than slaves, were not United States citizens, barred access to patents because the patent oath at that time required citizenship and the Attorney General and Patent Office used Dred Scott’s ruling to prevent African Americans from receiving patents for their inventions.

Frye concludes:

The story of the Attorney General’s opinion in Invention of a Slave illustrates the peculiar and conflicted logic of the ideology of slavery. In Dred Scott, the Supreme Court held that African-Americans could not be citizens of the United States in a vain attempt to insulate racial slavery and discrimination from challenge.305 The ideology of slavery insisted that African-Americans were intellectually inferior to whites, and by extension, incapable of creating patentable inventions. African-American inventors refuted that claim, so the ideology of slavery had to pretend they didn’t exist

The ideology of slavery insisted that slave owners had a right to own everything produced by their slaves, so when slaves created inventions, slave owners had a right to own those inventions as well. Indeed, the ideology of slavery led slave owners to characterize denying them the right to patent the inventions of their slaves as a violation of the principle of equal protection. But the ideology of slavery then had to explain how it was possible for slaves to create inventions in the first place, which it accomplished by rationalizing slavery itself as a form of humanitarianism. In the twisted logic of the ideology of slavery, the existence of slave inventors only “proved” that African-Americans benefited from slavery.

In Invention of a Slave, the Attorney General applied the ideology of slavery as expressed in Dred Scott to deny slave owners the right to patent the inventions of their slaves. As Kenneth Dobyns observed in his history of the early patent office, “[a] century or more later, some people have considered this to be another instance of the federal government depriving slaves of rights, but it could also be interpreted as a federal government which deprived slave owners of at least one benefit of owning slaves.” But ironically, the Patent Office applied that same logic to prevent free African-Americans from patenting their inventions, as well. The story of Invention of a Slave reflects the struggle over the ideology of slavery in a microcosm.

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Oh, and by the way, while those of African-American descent can, of course, receive a patent today, don’t forget that there are still massive barriers and inequities in the patent system which has led to a gender gap in patenting as well as a minority gap.

Krista L. Cox is a policy attorney who has spent her career working for non-profit organizations and associations. She has expertise in copyright, patent, and intellectual property enforcement law, as well as international trade. She currently works for a non-profit member association advocating for balanced copyright. You can reach her at kristay@gmail.com.

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