The Colorblind Patent System and Black Inventors, Invent Together

March 1, 2020

Published in Landslide Vol. 11 No. 4, ©2019 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.Innovation and inventing have been critical to America’s progress since its birth.1 These concepts were so important that the Founding Fathers wrote them into the first Article of the U.S. Constitution, authorizing Congress to give inventors exclusive rights to their inventions for a limited time.2 The Patent Act was one of the first pieces of legislation passed by the first U.S. Congress in 1790, and it revolutionized the global patent landscape.3 By the end of the 1800s, America had catapulted itself to the top of the world’s economic food chain, and the U.S. patent system was one of the reasons why.4 Inventors with access to this system were, and still are, uniquely positioned to quite literally change the world. From inception, our patent system recognized that American progress needs inventors and that inventors should own the fruits of their intellectual labor for some period of time when certain requirements are met. On paper, these constitutional ideals have always applied equally to the demographic tapestry of American inventors. The original law did not explicitly exclude certain races of inventors from participation in the patent system, unlike some of the other laws that existed at that time. There were, however, practical legal barriers that excluded the earliest black inventors in the United States from obtaining patents.The patent system simply was not available at that time to enslaved people—they were not considered American citizens, and the rights and provisions of the Constitution did not extend to them.5 In addition, states enacted laws that prevented enslaved people from owning any kind of property, presumably including patents.6For black inventors who were either born free or otherwise acquired their freedom, there were also legal barriers. After 1793, the Patent Act “included a ‘Patent Oath,’ which eventually required patent applicants to swear to be the ‘original’ inventor of the claimed invention and to their country of citizenship.”7 The U.S. Supreme Court’s 1857 Dred Scott opinion held that black Americans could not be citizens of the United States.8 Arguably, free blacks were precluded from patenting their inventions after Dred Scott because they did not have a country of citizenship and presumably could not swear to the Patent Oath.9 Even after the Dred Scott opinion was superseded by the Thirteenth and Fourteenth Amendments after the Civil War, “the economic and educational conditions that many free blacks faced . . . simply were not conducive to pursuing whatever incentives and opportunities U.S. patent law provided.”10There was and continues to be a consistently wide gap between the colorblind American patent system and certain groups of inventors, especially black inventors.This article will highlight black inventors from America’s inception to now. It will also highlight past and present barriers faced by black inventors.

Early Black Inventors in a New America

Three months after President George Washington signed the Patent Act in April 1790, Samuel Hopkins, a white man from Philadelphia, received the first U.S. patent for “an Improvement in the making of Pot ash and Pearl ash by a new Apparatus and Process.”11 It would be 31 years—1821—before Thomas Jennings became the first black inventor to receive a U.S. patent for his dry cleaning methods.12 Martha Jones, who is the first known black woman to obtain a U.S. patent, would not obtain one for her “Improvement to the Corn Husker, Sheller” until 1868,13 while the first (white) woman received a patent 59 years prior in 1809.14

These gaps show the reality of the times—black inventors faced significant barriers whether free or enslaved.15 This did not, however, kill their inventive spirit. People who were enslaved served as prolific inventors on Southern plantations. For example:

At the turn of the nineteenth century, a Kentucky slave invented the hemp brake. In about 1800, a Massachusetts slave named Ebar invented a method of making brooms out of corn stalks. In about 1825, an Alabama slave named Hezekiah invented a machine for cleaning cotton. In 1831, a Charleston, South Carolina slave named Anthony Weston invented an improvement on a threshing machine invented by W.T. Catto . . . . And in 1839, a North Carolina slave named Stephen Slade invented a method of curing tobacco that enabled the creation of the modern cigarette.16

These unsung inventors never obtained patents or the financial gains of their inventions—though slave masters and other white men often did. Some would take undue credit for these inventions and/or secretly patent the inventions themselves, ignoring the true inventors.17

For example, there have long been suggestions that the cotton gin was actually conceived of by an enslaved man named Sam, not Eli Whitney, who is revered as one of America’s great inventors.18 In addition, not long after the invention of the cotton gin, plantation owner Cyrus McCormick received a patent for another invention that transformed farming and made him a multimillionaire—the mechanical reaper.19 Today, most people also attribute the reaper’s invention to Jo Anderson, an enslaved man owned by the McCormick family.20 As a society deeply entrenched in slavery during this time period, these kinds of events were not uncommon.21

Some enslaved inventors did, however, acquire significant wealth. One quintessential example of early American ingenuity is the story of Benjamin Montgomery, who was born into slavery in Virginia in 1819 and later sold in Mississippi to Joseph Davis, the brother of Jefferson Davis. While enslaved in Mississippi, Montgomery invented a certain type of boat propeller with significant utility for those who depended on steamboats to deliver goods along the waterways.22 Montgomery could not receive a patent for the invention as he was a slave and not considered a citizen. Nonetheless, Montgomery found success. He operated a general store on the plantation, built relationships, and continued to innovate. He eventually earned enough money to purchase his wife’s freedom. After the Civil War ended, he also purchased the plantation he worked on as a slave and became one of the wealthiest planters in Mississippi. This positioned his son, Isaiah Montgomery, to found Mound Bayou, a successful African American enclave in Mississippi in the early 1900s.23

During these early American years, free black Americans were also inventing and contributing to the country’s transition into a land of innovation. Thomas Jennings, the first known black patentee, was born free and successfully patented a dry cleaning method in 1821.24 This proved to be lucrative for him, as the ability to exclude others from making and selling his invention led Jennings to own one of New York City’s largest clothing stores.25 His success was passed along to his children, who all were successful in their professional pursuits.26 In addition, Jennings’s accomplishments extended far beyond his children—he used the profits from his patented invention to free the rest of his family from slavery.27 His invention also improved the quality of life for customers and sparked later innovation that created the dry cleaning industry we are familiar with today.28

Another black inventor, Norbert Rillieux, revolutionized industry both domestically and abroad. Rillieux was born free in Louisiana in 1806 and studied engineering in France.29 Because of his intelligence, he became the youngest person ever—at age 24—to serve as an applied mechanics instructor at L’École Centrale, a prestigious French institution.30 Rillieux ultimately applied for and received four U.S. patents related to sugar refining once he returned to America.31 His inventions transformed the industry, and he became the most celebrated engineer in Louisiana at the time.32

Unfortunately, all free black inventors were not created equal. According to Professor Brian Frye:

Obtaining a patent was difficult and expensive [for free black inventors]. Some inventors could not afford to patent their inventions or could not obtain legal assistance. Some inventions were 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. And others used their white partners as proxies, for the same reason.33

One such inventor was Henry Boyd, who purchased his freedom in 1826 prior to inventing a new type of bed frame. Boyd partnered with a white man who applied for the patent in his own name.34 The patent was granted to Boyd’s proxy in 1835, and within a decade Boyd’s company was Cincinnati’s premier manufacturer of bed frames and employed between 18 and 25 black and white men.35

These early inventors laid the groundwork for modern American inventors from all backgrounds, especially black inventors. Today’s black inventors do not face the same legal and societal hurdles to the patent system, and many have found significant success. However, the number of black U.S. patentees is disproportionality low. The next section will highlight some of these inventors and the impact of low patent system involvement.

Modern Black Inventors in a Maturing America

America’s ascent as the preeminent industrialized nation in the world was driven by the “golden age” of innovation and invention during the late nineteenth and early twentieth centuries.36 Early black inventors were critical participants in the patent system during this time.

One of the most prolific inventors of the golden age was Granville T. Woods, a black man who received more than 60 patents in the fields of electricity and telegraphic communications.37 Born in 1856, Woods viewed invention as both a means to acquire capital to invest in future projects and a way to implement the modernization of America.38 Woods was self-taught, having left school at age 10 to work in an Ohio machine shop. He studied electronics, machining, and blacksmithing while working full time.39 Woods received his first patent in 1884 for a steam boiler furnace.40 He would travel between Cincinnati and New York inventing, raising venture capital for, and selling his inventions.41 His inventions competed with those of highly regarded inventors like Alexander Graham Bell, Lucius Phelps, and Thomas Edison.42 His patented inventions included technology that improved trains, streetcars, and electrical communication systems, among other things. Upon his death in 1910, Woods had realized his goal of helping to modernize America.

Along with Woods, Lewis Latimer was a premier black inventor at the end of the nineteenth century. Born free in 1848 to parents who had run away from slavery, Latimer learned about patent drafting as an office boy in a Massachusetts patent law firm.43 Latimer rose in the firm’s ranks to become a draftsman—a professional rarity for blacks during this period—and over time he not only helped others but also developed several of his own inventions.44 His inventions included toilet systems for railroad cards, carbon filament light bulbs, and the now-common threaded light bulb socket, among other things.45 Latimer worked with some of America’s most well-known inventors, including Alexander Graham Bell and Thomas Edison.46 His work helped make electric lights possible both in private homes and in public, and this transformed the way Americans lived and worked at that time.47

As the twentieth century was beginning, other black inventors were helping to make Americans safer with their inventions.

Garrett Morgan, for example, received patents for what would become the gas mask in 191448 and the traffic signal in 1923.49 Morgan was formally recognized by the city of Cleveland in 1916 when he saved the lives of 24 men trapped in a tunnel beneath Lake Erie while wearing the mask he invented.50 His traffic signal invention became an indispensable component of both national and global traffic models.51 Morgan’s traffic signal invention is the grandfather of the type we use today.

Charles Richard Drew, a doctor in Washington, D.C., helped make medical gains by inventing a method for preserving human blood in 1942.52 Drew’s work saved thousands of lives during World War II, and he became the founding medical director of the United States Red Cross Blood Bank.53

In the home safety space, Marie Van Brittan Brown invented the first home security system and obtained a patent for it in 1969.54 She invented the system because police did not respond quickly to emergencies happening in her New York neighborhood.55 Brown’s invention allowed a homeowner to see a person at the door and hear their voice on a television set that was controlled by a wireless radio system.56 Some iterations of Brown’s home security are still being used in the twenty-first century.

These examples show that black American inventors have developed technology that not only advanced American technology but also saved and continues to save lives. These inventors improved our health and safety. Other black inventors created new ways for people around the world to enjoy themselves.

Dr. Lonnie Johnson, for example, changed water fights forever with his invention of the number one selling water toy of all time—the Super Soaker water gun. Johnson received a patent for a “squirt gun” in 1986 at a time when water guns essentially all followed the same design. Johnson’s background as a NASA engineer led him to design a water gun that uses air pressure to create more forceful water streams.57 To date, Johnson’s water guns are approaching $1 billion in sales and are sold by Hasbro, the largest toy maker in the world.58 Johnson currently holds more than 100 patents on everything from toys and consumer products to advanced energy devices and methods.59 He has used the profits from his patented inventions to found and operate a research lab in Atlanta’s inner city that stimulates economic development and creates jobs.60

Other modern American inventors have used their inventions to serve the world as humanitarians. Dr. Patricia Bath, an ophthalmologist and academic, received multiple patents related to cataract treatment between 1988 and 2003.61 The technology she invented, including the Laserphaco Probe, is used around the world to painlessly treat cataracts.62 Bath used her successes to found the American Institute for the Prevention of Blindness in Washington, D.C. She travels the world on humanitarian missions, restoring sight for those without access to adequate medical treatment.

Modern black inventors are also at the forefront of cutting-edge technology that improves both the public and private sectors. In the private sector, Marian Rogers Croak currently holds more than 135 patents primarily related to voice-over Internet protocol (VoIP) technology, which paved the way for VoIP systems like Skype and Google Hangouts.63 Croak spent more than 30 years at AT&T, where she managed 2,000+ engineers and led AT&T to replace wired communications with Internet protocol.64 She currently serves as a vice president of engineering at Google, where she is responsible for Google’s global expansion of Internet access in emerging markets and elsewhere.65

Another such inventor is Janet Emerson Bashen, the founder and current CEO of Bashen Corporation, who became the first black woman to obtain an American software patent in 2006.66 Early in her career, Bashen worked in the insurance industry and noticed that the industry needed private, third parties to investigate Equal Employment Opportunity (EEO) claims. She founded a company to meet this need and then coinvented a way to securely store information about EEO investigations.67 Bashen went on to develop new software that facilitates EEO complaints and other Title VII adherence.68

In the public sector, there are esteemed inventors such as Dr. Robert G. Bryant of the National Aeronautics and Space Administration (NASA). Bryant has served as an inventor or coinventor on dozens of issued patents related to polymers and advanced composites during his career at NASA.69 His work is highly regarded in the industry, having received numerous accolades over the years, including R&D 100 awards in 1994 and 1996 and the NASA Government Invention of the Year Award in 2006.70

These black American inventors illustrate the range of benefits associated with encouraging innovation and access to the American patent system. Those who can participate in it not only receive the personal right to exclude others from making, using, offering for sale, or selling their invention, but they also receive a gateway to revolutionizing our country with their innovations.

Unfortunately, the reality remains that black patentees are woefully underrepresented in America. Recent studies show wide disparities between the number of U.S. patents issued to inventors of color and the total number of patents issued.71 This is particularly true for black and Hispanic inventors. There is no reliable data on the actual number and proportion of black American patentees because the United States Patent and Trademark Office (USPTO) does not currently collect demographic data about patentees.72 However, tangential and anecdotal research suggests that the rates are very low.73

For example, one 2010 study found that from 1970 to 2006, black American inventors received six patents per million people, compared to 235 patents per million for all U.S. inventors.74 Another 2016 study found that black Americans “apply for patents at nearly half the rate of whites.”75

A 2016 Information Technology & Innovation Foundation report, The Demographics of Innovation in the United States, found even more grim results.76 The report surveyed “innovators,” defined as people who have won national awards for their inventions; people who have filed for international, triadic patents77 for their innovative ideas in three technology areas (information technology, life sciences, and materials sciences); and people who have filed triadic patents for large advanced-technology companies. This report identified only 0.3 percent of black American respondents as “innovators.”

There are no easy answers to address these racial gaps. As some scholars have noted, any solutions are multifaceted and their success will rely on the creation and success of other solutions.78 Some solutions include: (1) greater STEM exposure and education; (2) mentorship and social networking; (3) institutional changes in academia and industry so that black inventors have much-needed support; (4) greater exposure to inventors and innovation; (5) access to financial resources; and (6) public policy changes that prevent and remedy discrimination.79

The existing gaps must be addressed, however, and not merely for social parity reasons. There are economic imperatives: increasing the number of black American inventors will also increase America’s GDP—by as much as 3.3 percent according to some estimates.80 In addition, patent ownership is essential for acquiring venture capital and improving the success rates of startup companies.81 Many early black inventors, like Granville Woods, used patents to raise the funds necessary for continued innovation. Persistent gaps like these “result in the U.S. foregoing the opportunity for substantial economic growth and job creation.”82

In addition, diversity broadens the continuum of experiences and perspectives to draw from, which will in turn lead to more creative solutions to the world’s problems.83 One Nigerian-American inventor, Jessica Matthews, invented a soccer ball in 2009 that doubles as a power generator. Matthews came up with the idea after attending a wedding in Nigeria as a teenager.84 She later founded a company, Uncharted Play, that now owns 15 patents and broke records when it raised $7 million in a Series A funding round in 2016.85 Matthews’s life experiences and diverse background led to the emergence of this innovative solution to global access to power problems.


America’s innovation landscape has long been considered among the best in the world, thanks in part to its 228-year-old patent system.86 Black American inventors have consistently participated in it, despite many past and present barriers. From Thomas Jennings to Jessica Matthews and beyond, these inventors have contributed to the fabric of America’s innovation ecosystem. As America looks forward, we would all be served well by creating an inclusive and diverse patent system that is not only colorblind, but accessible to all.