America has long been the land of innovation. More than 13,000 years ago, the Clovis people created what many call the “first American invention” – a stone tool used primarily to hunt large game. This spirit of American creativity has persisted through the millennia, through the first American patent granted in 1641 and on to today.
One group of prolific innovators, however, has been largely ignored by history: black inventors born or forced into American slavery. Though U.S. patent law was created with color-blind language to foster innovation, the patent system consistently excluded these inventors from recognition.
As a law professor and a licensed patent attorney, I understand both the importance of protecting inventions and the negative impact of being unable to use the law to do so. But despite patents being largely out of reach to them throughout early U.S. history, both slaves and free African-Americans did invent and innovate.
Why patents matter
In many countries around the world, innovation is fostered through a patent system. Patents give inventors a monopoly over their invention for a limited time period, allowing them, if they wish, to make money through things like sales and licensing.
The patent system has long been the heart of America’s innovation policy. As a way to recoup costs, patents provide strong incentives for inventors, who can spend millions of dollars and a significant amount of time developing an invention.
The history of patents in America is older than the U.S. Constitution, with several colonies granting patents years before the Constitution was created. In 1787, however, members of the Constitutional Convention opened the patent process up to people nationwide by drafting what has come to be known as the Patent and Copyright Clause of the Constitution. It allows Congress:
“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
This language gives inventors exclusive rights to their inventions. It forms the foundation for today’s nationwide, federal patent system, which no longer allows states to grant patents.