June 19, 2020

A Brief History of Patents & Slavery In Honor of Juneteenth

155 years ago today, on June 19th, 1865, Major General Gordon Granger landed at Galveston, Texas, and issued General Order 3, completing the elimination of slavery in the United States began by Republican President Abraham Lincoln’s Emancipation Proclamation on September 22, 1862. 

While there were certainly inventors who were slaves, the patent system was unavailable to them. In an interesting case from 1857, a slave named Ned invented a “double plow and scraper,” which enabled a farmer to plow and scrape both sides of a row of cotton simultaneously. Ned was “owned” by Oscar J.E. Stuart, a lawyer and planter from Mississippi. Stuart tried to patent the invention first in Ned’s name and then in his own, but was denied by the Commissioner of Patents because Ned, as a slave, could not execute the required oath and neither could Stuart because he was not the inventor. Stuart, apparently having no sense of irony, complained that it would violate “equal protection” if slave owners could not patent the inventions of their slaves. Read more about this in Frye, Invention of a Slave, 68 Syracuse Law Review 181 (2018)

According to the Report of the Commissioner of Patents for the Year 1857, the invention of a slave could not be patented because a slave inventor could not take the patent oath and, in any event, could not receive, own, or transfer a property right. This latter point was actually consistent with the laws in some states (e.g., Louisiana) that prohibited slaves from owning property even if they could obtain it.

The Confederate States patent laws expressly permitted the owner to apply to patent the invention of a slave, although it is not clear whether any slave owner took advantage of this during the short tenure of the Confederate States Patent Office. This provision may have been initiated by Confederate President Jefferson Davis, who, with his older brother Joseph Emory Davis, previously unsuccessfully attempted to get a U.S. patent on an improved propeller invented by Benjamin Thornton Montgomery, then a slave owned by Joseph.

The inability to get a patent seems trivial in comparison with the injustice of slavery; but this embarrassment of the patent system ended 155 years today.