PATENT RACISM, systemic bias embedded in the United States' patent processes that results in unequal access, recognition, and rewards for inventors. Throughout history, marginalized communities, particularly people of color, have faced systemic barriers to innovation and intellectual property protection. The legacies of colonialism and slavery have entrenched disparities in access to education, resources, and legal protections, creating an uneven playing field for inventors of different racial backgrounds.
The protection of intellectual property and innovation has been a central value of the United States since its earliest formation. The first recorded patent in the colonies was granted by the Massachusetts General Court to Samuel Winslow in 1641 for a new method of making salt. The establishment of national patent law was initiated a century later during the 1787 writing of the Constitution. Article I of this governing document granted Congress the right “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.” In 1790 Title 35 of the United States Code, the Patent Act, specified the scope and limits of patent protection, and introduced the requirement that a patented invention be “non-obvious.” Patents granted inventors a monopoly, allowing them to profit from their innovations. These laws are still in force, which is why the United States is considered to have the most robust intellectual property laws in the world.
While US patent laws did not formally exclude people based on race, practical barriers prevented many early Black inventors from obtaining patents. Scholar Brian Frye notes that the process was “difficult and expensive,” so some black inventors “could not afford to patent their inventions or could not obtain legal assistance.” In addition, “some inventions were [deemed] not worth patenting. And some patent applications were rejected, possibly based on racial discrimination. Accordingly, some patent applicants concealed their race from the Patent Office, in order to avoid potential discrimination.”
When the patent system was created, it was not available to enslaved people, who as noncitizens had no constitutional rights. Slaves were also prohibited from owning property, which included patents. Slaveowners frequently tried to take credit for their slaves’ inventions. Economic historian Sean Vannatta writes, “Evidence suggests that Eli Whitney’s cotton gin and Cyrus McCormick’s reaper, both landmark antebellum inventions, were at least partially the products of slave intellectual labor.” In 1821 Thomas Jennings, who had been born free in New York City, became the first African American to be granted a patent, for his unique dry-cleaning method. Jennings’ accomplishment came thirty years after Samuel Hopkins was granted the first US patent.
In 1857 Jefferson Davis, future president of the Confederacy, filed a patent claim for an improved riverboat propeller. The claim was denied when he acknowledged that the invention had been that of Benjamin Montgomery, a slave on Davis’ brother's plantation. The brother, Joseph Davis, then filed his own patent claim, arguing that, since Montgomery was his property, the enslaved man’s creations must also be his property. Joseph’s claim was also denied, and US commissioner of patents Joseph Holt ruled that inventions by slaves could not be patented under the existing law—by anyone. Because Montgomery was, in Holt’s words, “legally incompetent” as a slave, he was unable to file the claim himself; since neither of the Davis brothers were the actual inventors of the propeller, they couldn’t claim patent rights either.
In 1861, under Jefferson Davis’ leadership, the Confederate States enacted a patent law formalizing slaveowners’ possession of their slaves’ inventions. However, Vannatta notes that “of 274 patents issued by the Confederate Patent Office from August 1861 to March 1865—including improvements to rifle and cannon technology, submarine and torpedo models, and a new type of artificial leg—none appears to have been the product of slaves.”
The abolition of slavery in 1865 saw dramatic increases in claims by Black inventors. Between 1870 and 1900 Black Americans filed patents at approximately the same rate as White Americans. Martha Jones was the first African American woman to receive a patent, which she earned in 1868, for her “Improvement to the Corn Husker, Sheller.” Mechanical and electrical engineer Granville T. Wood received over fifty patents, and Lewis Latimer, a patent draftsman, made numerous inventions in his own right, including carbon filaments for lightbulbs and an early forerunner of the air conditioner.
The early twentieth century, on the other hand, saw a general decline in African American patenting, which Lisa Cook has correlated with the Plessy v. Ferguson ruling and the sanctioning of segregation laws. African Americans were suddenly prevented access to libraries, which held patent registries, and commercial districts, where patent attorneys were located. And, Cook notes, “they were cut off from talking to other inventors.” Cook’s research corrolates additional dips in African American patent filings to lynchings and other incidents of extreme racialized violence, such as the 1921 Tulsa race massacre. According to Cook’s statistical calculations, between 1900 and 1940 “the United States had lost out on more than 1,100 inventions from black inventors.” Still, some Black inventors, like George Washington Carver were able to overcome significant obstacles to obtain patents during this period. Carver, who had been born into slavery, pioneered methods for the prevention of soil depletion and challenged the hegemony of cotton, revolutionizing the farming industry with his support of “alternative” crops. He developed hundreds of product formulas using sweet potatoes, peanuts, and clay; three were patented.
With the overturning of Plessy in 1954, the number of patented innovations by Black inventors grew sharply. Marie Brittain Brown patented the first home security system in 1969; Patricia Bath invented the Laserphaco probe, a groundbreaking technology to safely eliminate cataracts, in 1988; and Mark
E. Dean holds a patent for being a cocreator of the IBM personal computer released in 1981. Lonnie Johnson invented the ubiquitous Super Soaker water gun in 1986, and today holds more than 130 patents.
Despite progress in civil rights and diversity initiatives, patenting rates for Black Americans are, on average, still lower than those for White Americans. Structural biases within patent offices, including implicit bias among examiners and institutionalized discrimination, contribute to these disparities. Socioeconomic factors intersect with race, exacerbating inequality in innovation. Minority inventors still often lack access to capital, mentorship networks, and legal support to navigate the patenting process successfully. As a result, their inventions may go unrecognized or exploited, perpetuating cycles of economic disadvantage and marginalization.