In 1858, Attorney General Jeremiah S. Black issued an opinion on the patentability of a “new and useful machine invented by a slave.”
He needed only three sentences to explain that an invention by an enslaved inventor could not be patented. The Attorney General relied on the Supreme Court’s holding the previous year in Dred Scott v. Sandford that African Americans were not citizens, whether free or enslaved.
Without the ability to swear an oath of citizenship, enslaved persons could not apply for patents.
This reasoning also placed free African Americans outside the bounds of patent law.
Further, the Attorney General declared that the owner of an enslaved inventor could not patent the invention,
as the owner was barred by the statutory requirement that only the “original and first inventor” could receive a patent.
His opinion, Invention of a Slave, created a formal racial barrier to the United States patent system, which free African Americans had previously accessed.
Both enslavers and anti-slavery advocates expressed outrage about the opinion, but amid the national tumult over slavery that Dred Scott singularly failed to resolve, the controversy was soon overtaken by events in Bleeding Kansas, the presidential election of 1860, secession, and, ultimately, the Civil War (1861–1865). Within a few years, the law changed. Edward Bates, Attorney General under President Abraham Lincoln, issued an opinion stating that, contrary to Dred Scott, all natural-born Americans regardless of color or race were citizens, and the Reconstruction Amendments and early federal civil rights legislation abolished the law of slavery, rendering Invention of a Slave obsolete.
As lawyers, we have a collective memory, curated by law reviews, as well as by published cases, treatises, and the content of law school classes—a memory both continuous and changeable.
Invention of a Slave was dropped from that memory, uncited in judicial opinions and infrequently discussed, even in patent law scholarship.
As legal scholar Brian Frye explained when analyzing the opinion as “a forgotten IP case,” lawyers forgot it for “the best reason.”
The formal racial barrier to patents it had erected was swept away, never to return.
While there are sound reasons why lawyers do not continue to cite and discuss obsolete rulings, there are always exceptions.
The national controversy that prompted Dred Scott, the heated debates about the opinion after it issued, and the bloody war and constitutional changes that rendered it obsolete have kept that opinion in the pantheon of significant cases we continue to teach and discuss.
Invention of a Slave appears to be a mere footnote to that significant opinion. The epic saga of Dred and Harriett Scott and their multiple legal battles became a matter of national import as their fight for freedom ended up in the Supreme Court.
The brief attorney general opinion, in contrast, echoes the same “struggle over the ideology of slavery” within the “microcosm” of the patent office, a minor bureau of the antebellum government.
Even as a small-scale story of slavery in the antebellum United States, Invention of a Slave provides a poignant example of the contradictions between humanity and property that challenged and distorted American law in a slave society.
It forces us to acknowledge that the ideology of slavery reached into the technical bureaucracy of the patent office, an area of law and of the administrative state frequently considered outside politics.
The dry lines of the opinion expose the breathtaking claim by an enslaver to the mental labor of another person—an ultimate claim of whiteness as intellectual property—and another frontier in the “myriad and nefarious uses of slave property.”
These features make Invention of a Slave a story worth remembering.
One of history’s projects is the recovery of missing stories. This goal has always been urgently foregrounded in African American history as a corrective to the whitewashed narrative that dominated professionalized history in the United States from its late-nineteenth-century inception.
Invention of a Slave, however, has never been a “forgotten” or missing story.
For over 150 years, African American activists have remembered and written about the opinion in many venues excluded from our collective legal memory.
Their remembering was not casual storytelling but rather deliberate, strategic, and political. Understanding the purpose of their efforts reveals the opinion’s continuing relevance to our collective effort to understand what the law is, how it is working, and how it might be changed in the service of justice.
I offer Invention of a Slave as a case study of race and selective legal memory, tracing the color line that demarcates legal memory and the costs of that line.
I begin with my first encounters with Invention of a Slave and its backstory as told in African American “sites of memory.”
I then foreground the nineteenth- and twentieth-century storytellers to understand by whom and in what places the opinion was remembered. With an appreciation of the opinion as a remembered story, I can then ask, why? What were the stakes that drove African American activists and leaders to tell and retell the story of the enslaved inventor and his exclusion from the patent system? I argue that this memory work was performed in support of fights for the “rights of belonging,” the various civil rights that signal and accompany inclusion.
Between the formal lines of the opinion, these activists read an unintended message that patents could be political tools used to oppose anti-black racism and racist laws. They mobilized patents as government certifications that their recipients had a prized mental ability, inventiveness, in order to undercut the logic of racism in its shifting guises, including scientific racism, white supremacy, and the pernicious bigotry of low expectations.
This labor resulted in publications that remained on the other side of a color line, excluded from the acknowledged repositories of legal memory. This exclusion has carried costs, as we in law have failed to appreciate and participate in what was always in part a legal effort, even though it occurred outside formal legal publications. These storytellers, by telling one of law’s stories, were seeking legal change. Our legal erasure of both the opinion and storytellers has allowed us to encounter a well-remembered story as “forgotten” and remain blind to its relevance. Acquiring a new perspective transforms Invention of a Slave from an oft-overlooked piece in the vast mosaic of law and slavery in the antebellum United States into part of the post-Emancipation history of race and law—a history characterized by never-ending and always-changing campaigns to fulfill the formal promises of the Reconstruction Amendments to bring African Americans into law and society as citizens. This history has not ended, but rather remains “something that is happening,”
as we continue to debate what Barbara Welke has memorably called the “borders of belonging,” that is, the contours of citizenship and Americanness as shaped in law and society.
As a case study making law’s color line visible, the history of remembering and forgetting Invention of a Slave exposes the persistent whiteness of both the authors and content of curated legal memory, linking that persistence to the persistence of racial inequality in all aspects of law and society. Recognizing that the costs of that line are being paid in the present is in itself significant, challenging all of us who participate in curating law’s memory. Further, understanding the link among patents, African American inventive ability, and belonging offers opportunities to contribute to the burgeoning project of Critical Race IP to “remak[e]” intellectual property to “heal the wounds of racism” at a time when intellectual property is ever more important in the economy and law.
I end by reflecting on teaching and researching patent law and policy with the recognition that I do so as a participant in the present-day happening of race and citizenship.