Excerpted From: Kara W. Swanson, Centering Black Women Inventors: Passing and the Patent Archive, 25 Stanford Technology Law Review 305 (Spring 2022) (321 Footnotes) (Full Document)


KaraWSwansonSometime during or before 1888, inventor Ellen Eglin reportedly sold the rights to her improved clothes-wringer to “an agent” for $18. Eglin explained her decision in terms of racial politics: “You know I am black and if it was known that a [Black] woman patented the invention, white ladies would not buy the wringer.” Eglin probably invented the wringer based on the expertise she had gained as a laundress, one of the limited number of occupations then available to Black women. Keenly aware of the matrix of racism and sexism in which she lived, Eglin predicted that stigma and bias would hamper her ability to profit from her invention as a patentee and commercializer. Instead, she chose the certainty of a one-time sale of all rights. Eighteen dollars might have represented a month's wages. It was far less than the “great financial success” the purchaser reportedly enjoyed.

This snippet of indirect evidence, mediated through a white woman's newspaper, is the sole known trace of Eglin's inventiveness. The patent office records, the only official archive of U.S. inventiveness, are silent with respect to Eglin's creativity, her understanding of the patent system as a means of commercialization, and her success in monetizing her invention. She is simply and completely absent.

Missing from patent records, Eglin and other inventors like her are discussed with respect to well-documented gaps in patent rates. These gaps measure the historic and persistent disparity in patents received between women and men and between white inventors and inventors with other racial identifications. She is one among the multitudes of missing in a patent archive overwhelmingly recording the inventiveness of white men. One recent study called the current rate of patenting by Black Americans “dismal,” while another noted that while the gender gap in patents has been shrinking, at the current rate of change, gender parity would not be achieved for another 118 years. These gaps are appropriately the subject of a growing conversation about increasing diverse participation in the U.S. patent system, important for both equity and innovation policy.

As crucial as these remedial efforts are, they also reinforce historical marginalization. Counting patents and noting underrepresentation considers the missing as occupying a negative space of loss and even “dismal” failure. This Article uses a different perspective. Using historical methodology and centering Black women inventors, I resituate the patent gaps as archival silences to which we can and should listen in order to understand the U.S. patent system, past and present. To listen to archival silences is to attend consciously and carefully to what is not there and to be receptive to whispers that come around and through a formal archive, whispers that fill the silences with stories. Eglin's few reported words are one whisper that tells a story of a Black woman who found a way to contribute to U.S. invention and participate in the patent system.

As Black feminist writer and educator Elise Johnson MacDougald noted almost a century ago, when discussing Black women, “one must have in mind not any one [Black] woman, but rather a colorful pageant of individuals.” Eglin's story is unique to her; her experiences and choices do not reflect all Black women inventors. It is tempting to expand her story by combining her quoted words from 1891 with traces from other archives-- newspapers, government reports and census records. A patchwork of fragments could be read as a life history that begins with Eglin's birth into enslavement in Maryland in 1836, continues with her work as a servant in Massachusetts, restores her to a reunited family of siblings in Washington, D.C., who pooled resources to make a life as free people, and ends with Eglin running a boarding house in her seventies. This story, though, is guesswork, combining information about “Ellen Eglins” that might be the inventor Eglin and might be one or more other women.

Yet we can be sure that Eglin, like all Black women inventors, shared the experience of moving through the world while Black and female. Eglin's contemporary, Black feminist and educator Anna Julia Cooper--whose own unique experience included enslavement in North Carolina and a doctoral degree from the University of Paris-Sorbonne--famously wrote that “[o]nly the BLACK WOMAN can say [that] 'when and where I enter ... then and there the whole ... race enters with me.”’ Centering Black women inventors harnesses the power of intersectionality not only to understand their experiences, but also to explore race and gender gaps in patent rates into which the experiences of other marginalized racial and gender identities have disappeared, including white women and Black men. Collecting whispers to understand experiences not my own, I expand our discussion of patent gaps from dismal failure into an exploration of the unappreciated adaptation, agency, and accomplishment of marginalized inventors.

This exploration upends our understanding of the patent archive itself. United States patent law has restricted patent protection to the “true inventor” since the Patent Act of 1790. Enforced by the sanction of patent invalidity, this bedrock principle has persisted even as the law and context of invention have changed. It is the basis for what has been called the “deep-rooted, historical veracity” of patents as a record of who has invented. Redefining Eglin as a patent-savvy businesswoman rather than an inventor who failed to use the patent system, I argue that her sale of patent rights was a form of passing.

Eglin and other inventors marginalized by racial and/or gender identity interacted with the patent system through strategies that hid their identity and, sometimes, their very existence. Exercising agency within the constraints of racism and sexism, they allowed others to claim inventor status in their stead, risking patent invalidity in a clear-eyed calculus that considered the biases of white ladies buying laundry equipment and of patent examiners deciding who was capable of invention. In pursuit of profit, they adapted existing patent practices and assimilationist strategies, choosing paths that allowed themselves to disappear from the patent records, replaced by white male false inventors. As archivist Rachel E. Winston has noted, “effective silencing does not require a conspiracy, or even a political consensus--its roots are structural [and found in systems] of oppression, sexism, and global anti-Blackness.” The result of their decisions made within structural constraints has been an archive riddled with uncountable false inventors, systematically hiding the inventiveness and patent participation of Black women, Black men, and white women.

Passing, “a deception that enables a person to adopt certain roles or identities from which he would be barred by prevailing social standards in the absence of his misleading conduct,” is a proven strategy of marginalized people in the United States, and includes, among other forms, passing for alternate racial and gender identities, both in-person and remotely--sometimes situationally or temporarily, and sometimes permanently. It can be both a painful self-denial and a sometimes condemned yet rational choice in constrained circumstances.

The existence of patent system passing unsettles our assumptions about the true inventor. Centering the Black woman inventor forces a consideration of when, how, and why patent system participants might deliberately flout inventorship doctrine. Taking Eglin seriously as an inventor and businesswoman led me to reexamine the legal history of the true inventor and expose the unappreciated ways in which white men, as both inventors and investors, used false inventors to receive patents in the early decades of the patent system. They were not seeking to pass, but rather using false inventors as an informal means of ownership assignment. True inventors agreed to falsely name an investor as an inventor on an application to ensure investor ownership of the resulting patent. I argue that in the hands of marginalized inventors, this practice, which I call “assignment by patent,” became a strategy of passing. Replacing a stigmatized identity with a white male identity as the named inventor facilitated the movement of the invention through the patent system and into the marketplace, while the true inventor vanished. Inventors like Eglin weighed the risk of patent invalidity against the inability to obtain or commercialize a patent in their own name, creating a new calculus that sometimes favored passing by false inventor. Each act of passing falsified the patent archive as a record of inventors, creating a systematic overrepresentation of white men.

Passing in the patent system, while an act of creative adaptation and an assertion of agency that deserves recognition, also entailed multiple losses. Eglin, for example, received only a small portion of her invention's evident commercial value and also lost the expressive value of claiming her own creativity via a patent. Eglin reportedly recognized that loss of recognition, sharing her plans to exhibit and patent another invention in her own name so that “the invention will be known as a [B]lack woman's.” Despite those plans, there is no known patent issued to Eglin.

In the silences of the patent archive, there are whispers of deeper losses, of inventors who lost all remuneration as well as attribution. The history of false inventors includes the theft of creativity from enslaved Black Americans and from marginalized inventors post-Emancipation. I argue that when marginalized inventors sought to patent their inventions in their own names, the raced and gendered terrain of the patent system hampered their fight against such appropriation. Their difficulties in proving they were true inventors were multiplied by the passing of other marginalized inventors. The resulting false truths of the patent archive reinforced existing biases that only white men possessed inventiveness.

The project of closing the patent gaps is a project of inviting marginalized inventors to claim the status of true inventor. In order to do so, it is crucial to appreciate the new truths taught by the archival silences and to recognize the history of false truths we have left unquestioned. Listening to the silences reveals a legacy of accomplishment that speaks back to narratives of failure. To recognize the false truths is to understand how their harmful consequences stretched from the individual, to the community, to the nation. I argue that only with this understanding can we effectively recognize and fight the biases and inequality that have been hidden in the patent gaps. The simple truth, grasped by Eglin, is that “inventor” should be an inclusive category in both our understanding of the long history of U.S. invention and in the contemporary patent system.

To reconsider the patent archive and the status of “inventor” by centering Black women inventors, I begin in Part II with Eglin's story, analyzing it as a story of passing that requires a reexamination of the true inventor doctrine. I argue that, during the early decades of the patent system, uncertainty about who might meet the statutory requirement of “true inventor” allowed the white men who were the near-exclusive users of the patent system to develop the practice of assignment by patent, as non-inventors sought patents with the permission of the true inventor as a convenient means of assigning ownership rights. I uncover historic evidence that the practice continued among white inventors and businessmen throughout the nineteenth century, even as the true inventor doctrine strengthened. In Part III, I reexamine assignment by patent from the perspective of Black women inventors, arguing that marginalized inventors like Eglin faced a different calculus of risk when they considered how best to profit from their inventiveness and adapted the practice of assignment by patent as a form of situational passing. I contrast Eglin's story with those of other marginalized inventors to understand how those with Black male and white female identities also used race and gender passing, investigating their motives and strategies. In Part IV, I consider the nonconsensual use of false inventors to steal the inventions of marginalized inventors, a practice with roots in slavery. I argue that, cumulatively, patent system passing via white male false inventors made it easier for other white men to succeed at what I call “appropriation by patent,” that is, claiming an invention by falsely and nonconsensually filing a patent application as the true inventor. In Part V, I demonstrate the truths and falsehoods that this analysis has exposed and the consequences, individual and communal, that cascade to the present.

[. . .]

No analysis centering Black women inventors would be complete without consideration of Madam C.J. Walker, today perhaps the most famous Black American woman inventor. Like Ellen Eglin, Walker worked as a washerwoman when she migrated from Mississippi to St. Louis in 1889. Eager to better her condition and provide for her daughter, Walker eventually went into business making and selling hair care products. Although she told a dramatic story of inventing a new hair growth ointment, Walker never completed the patent application process for her initial product. In 1913, she filed a patent application for a “Hair Drying and Straightening Comb” but then may have abandoned it. Her name, like Eglin's, is missing from the archive of patentees.

Instead of patents, Walker relied on innovative business methods, strategic self-promotion, and hard work to build a business that made her the wealthiest Black woman in the United States. She left an extensive archival record outside the patent system, a record that speaks in a powerful voice to what it meant for her to invent as a Black woman. Yet, although Walker far surpassed the business success of her contemporaries Granville Woods and Garrett Morgan, she was not heralded as a Black inventor in her lifetime. Without the evidence of patent records to speak to her inventiveness, her profits were not sufficient to earn her the moniker “Black Edison.” Rather than striving to incorporate the status of “inventor” into her identity as a Black woman, Walker, like Eglin, chose to fight other battles. She claimed her identity as a Black woman while taking public roles as a businesswoman, activist, and philanthropist.

Comparing Walker's story to Eglin's underscores that there has never been one way to invent as a Black woman. We can only understand American inventiveness fully and combat race and gender patent gaps by tracing the various passages of Black women in and through the patent archive. Centering the disparate strategies of Black women inventors, from the unknown to the famous, teaches us truths about how the patent system, like other areas of law, shapes identity, memory, power, and wealth in raced, gendered, and consequential ways.

Professor of Law and Affiliate Professor of History, Northeastern University, Boston, MA. B.S., Yale University; M.A./J.D., University of California-Berkeley; Ph.D., Harvard University.