Today, we ask, "Who should own a patent?" The University of Houston's College of Engineering presents this series about the machines that make our civilization run, and the people whose ingenuity created them.
I'm troubled by the patent and copyright system. It lets one person invent something and another one own the patent. Inventors can sell patents. Survivors can inherit them. Employers can own their employees' inventions. Then, too, one person often files a patent when others have provided key ideas.
An event from 1857 puts all that in a particularly ugly perspective. That year, a plantation owner named Oscar Stewart wrote the secretary of the interior. His slave, Ned, had invented a new, and very effective, cotton scraper. Stewart wanted to patent it.
Historian Portia Jones explains that Stewart walked around the patent office because he knew the commissioner of patents was a Northerner. He might not understand about masters and slaves.
But the secretary of the interior went straight to the patent office anyway. And they wrote back saying Ned would have to swear an oath that he was a citizen before they'd give him a patent. Of course, as a slave, he was not a citizen.
Stewart blew up when he read that. He was certainly not so foolish as to think Ned could hold a patent. After all, Ned was just property! Stewart obviously meant the patent for himself.
A nasty North-South issue had landed in the attorney general's lap. So he made a draconian ruling: henceforth, patents would not be given for slave inventions -- neither to master nor to slave.
So Stewart went into business making Ned's cotton scraper without the luxury of patent protection. No matter, he made a pile of money anyway. And his advertising said openly that the scraper was "the invention of a Negro slave -- thus giving the lie to the abolition cry that slavery dwarfs the mind of the Negro."
Jefferson Davis, soon to be president of the Confederacy, ran afoul of that ruling a year or so later. His brother had a slave named Benjamin Montgomery. Montgomery was a smart mechanic who'd invented a propeller to replace steamboat paddle wheels. Now it couldn't be patented! When the South broke away from the Union, Davis saw to it that Confederate patent law clearly made slave inventions into the property of their masters.
The Civil War ended that, but the larger matter of one person owning another's creative output remained. We can hardly argue against rewarding invention. But how far from the inventor those rewards often land! A friend, an English teacher giving a TV course, recently had to pay a book company to let him quote from its edition of John Donne's poetry. And Donne has been dead since 1631.
I'm troubled by the words intellectual property. For invention has no material being. When you try to treat it like material property, you create contradictions. In the end, you can no more own ideas than Stewart or Davis could own -- the people who created them.
I'm John Lienhard, at the University of Houston, where we're interested in the way inventive minds work.
James, P.P., Enslaved Inventors, Hidden Contributors. The Real McCoy: African-American Invention and Innovation, 1619-1930. Washington, D.C.: Smithsonian Institution Press, 1989, Chapter Three.